G.R. No.

157451 December 16, 2005

LETICIA VALMONTE ORTEGA, Petitioner,

vs.
JOSEFINA C. VALMONTE, Respondent.

DECISION

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of showing why it
should not be allowed. In the present case, petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute any reversible error on the part of the
appellate tribunal that allowed the probate of the will.

The Case

Before the Court is a Petition for Review under Rule 45 of the Rules of Court, seeking to reverse and
1 

set aside the December 12, 2002 Decision and the March 7, 2003 Resolution of the Court of
2  3 

Appeals (CA) in CA-GR CV No. 44296. The assailed Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET
ASIDE. In its place judgment is rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters testamentary to the petitioner
Josefina Valmonte. Let this case be remanded to the court a quo for further and concomitant
proceedings." 4

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the United States
until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines, and
he lived in the house and lot located at #9200 Catmon St., San Antonio Village, Makati, which he
owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two
years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28
years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a
little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down
as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page contains
the entire testamentary dispositions and a part of the attestation clause, and was signed at the end
or bottom of that page by the testator and on the left hand margin by the three instrumental
witnesses. The second page contains the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end of the attestation clause and again on
the left hand margin. It provides in the body that:

‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident of
9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and disposing mind
and memory, do hereby declare this to be my last will and testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic Church in
accordance with the rites and said Church and that a suitable monument to be erected and provided
my by executrix (wife) to perpetuate my memory in the minds of my family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2) portion
of the follow-described properties, which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro Manila,
described and covered by TCT No. 123468 of the Register of Deeds of Pasig, Metro-Manila
registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having share and share
alike;

b. 2-storey building standing on the above-described property, made of strong and mixed materials
used as my residence and my wife and located at No. 9200 Catmon Street, Makati, Metro Manila
also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in the name of my
deceased sister, Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-
owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my savings
account bank book in USA which is in the possession of my nephew, and all others whatsoever and
wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament,
and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City,
Philippines.’

"The allowance to probate of this will was opposed by Leticia on the grounds that:

1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give
them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and formalities were
not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an
advance sate of senility;

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

6. Will was procured by undue and improper influence and pressure on the part of the petitioner
and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend that the instrument
should be his will at the time of affixing his signature thereto;’

and she also opposed the appointment as Executrix of Josefina alleging her want of understanding
and integrity.

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

"According to Josefina after her marriage with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00 monthly
pension and stayed at the said Makati residence. There were times though when to shave off on
expenses, the testator would travel alone. And it was in one of his travels by his lonesome self when
the notarial will was made. The will was witnessed by the spouses Eugenio and Feliza Gomez, who
were their wedding sponsors, and by Josie Collado. Josefina said she had no knowledge of the
existence of the last will and testament of her husband, but just serendipitously found it in his attache
case after his death. It was only then that she learned that the testator bequeathed to her his
properties and she was named the executrix in the said will. To her estimate, the value of property
both real and personal left by the testator is worth more or less P100,000.00. Josefina declared too
that the testator never suffered mental infirmity because despite his old age he went alone to the
market which is two to three kilometers from their home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even traveled to Manila alone to claim his monthly
pension. Josefina also asserts that her husband was in good health and that he was hospitalized
only because of a cold but which eventually resulted in his death.

"Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that it was
in the first week of June 1983 when the testator together with the three witnesses of the will went to
his house cum law office and requested him to prepare his last will and testament. After the testator
instructed him on the terms and dispositions he wanted on the will, the notary public told them to
come back on June 15, 1983 to give him time to prepare it. After he had prepared the will the notary
public kept it safely hidden and locked in his drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were instructed by his wife to come
back on August 9, 1983, and which they did. Before the testator and his witnesses signed the
prepared will, the notary public explained to them each and every term thereof in Ilocano, a dialect
which the testator spoke and understood. He likewise explained that though it appears that the will
was signed by the testator and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually on August 9, 1983. He
reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like
the document to appear dirty. The notary public also testified that to his observation the testator was
physically and mentally capable at the time he affixed his signature on the will.

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

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her there
are other children from the siblings of Placido who are just as entitled to inherit from him. She
attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial
will the testator was already 83 years old and was no longer of sound mind. She knew whereof she
spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s family to live with
him and they took care of him. During that time, the testator’s physical and mental condition showed
deterioration, aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for
whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely:

1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the
will; and

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

"It then found these grounds extant and proven, and accordingly disallowed probate." 5

Ruling of the Court of Appeals

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

Hence, this Petition. 7

Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended that the instrument should be his last will and
testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed the
subject will."
8
In short, petitioner assails the CA’s allowance of the probate of the will of Placido Valmonte.

This Court’s Ruling

The Petition has no merit.

Main Issue:

Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review under
Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence presented during
the trial may be examined and the factual matters resolved by this Court when, as in the instant
case, the findings of fact of the appellate court differ from those of the trial court.
9

The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that must
be satisfied for the probate of a will. Verily, Article 839 of the Civil Code states the instances when a
10 

will may be disallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:

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

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

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

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

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

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

In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud in its
execution and challenging the testator’s state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the will, but
maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly,
she alleges that respondent, who is the testator’s wife and sole beneficiary, conspired with the
notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to
be [a] Fil-American pensionado," thus casting doubt on the intention of respondent in seeking the
11 

probate of the will. Moreover, it supposedly "defies human reason, logic and common
experience" for an old man with a severe psychological condition to have willingly signed a last will
12 

and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that the testator is misled or deceived as to the
nature or contents of the document which he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is led to make a certain will which, but for
the fraud, he would not have made." 13

We stress that the party challenging the will bears the burden of proving the existence of fraud at the
time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a
14 

showing of credible evidence of fraud. Unfortunately in this case, other than the self-serving
15 

allegations of petitioner, no evidence of fraud was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a
will. That the testator was tricked into signing it was not sufficiently established by the fact that he
16 

had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and
disregarded petitioner and her family, who were the ones who had taken "the cudgels of taking care
of [the testator] in his twilight years."
17

Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the
will does not invalidate the document, "because the law does not even require that a [notarial] will x x
x be executed and acknowledged on the same occasion." More important, the will must be
18 

subscribed by the testator, as well as by three or more credible witnesses who must also attest to it
in the presence of the testator and of one another. Furthermore, the testator and the witnesses must
19 

acknowledge the will before a notary public. In any event, we agree with the CA that "the variance in
20 

the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively
explained by the notary public and the instrumental witnesses." 21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985, October
13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced respectively as follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and his
witnesses were supposed to be in your office?

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?

A They did as of agreement but unfortunately, I was out of town.

xxxxxxxxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement appearing
therein. Was this the actual date when the document was acknowledged?
A Yes sir.

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

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

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

A Because I do not like anymore to make some alterations so I put it in my own handwriting August
9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us this
discrepancy in the date?

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

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxxxxxxxx

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

Josie Collado:

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

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)" 22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the commission of a
fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from
the allowance of the will. The testimonies of the three subscribing witnesses and the notary are
credible evidence of its due execution. Their testimony favoring it and the finding that it was
23 

executed in accordance with the formalities required by law should be affirmed, absent any showing
of ill motives.
24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following
guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution.

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

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

"Article 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.

"The burden of proof that the testator was not of sound mind at the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval."

According to Article 799, the three things that the testator must have the ability to know to be
considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the character of the testamentary act. Applying this
test to the present case, we find that the appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of
property he owned, the extent of his shares in them and even their locations. As regards the proper
objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. As we have
stated earlier, the omission of some relatives from the will did not affect its formal validity. There
being no showing of fraud in its execution, intent in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA, which held thus:
25 

"Between the highest degree of soundness of mind and memory which unquestionably carries with it
full testamentary capacity, and that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has
been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will
not render a person incapable of making a will; a weak or feebleminded person may make a valid
will, provided he has understanding and memory sufficient to enable him to know what he is about to
do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it
is not necessary that the mind be unbroken or unimpaired or unshattered by disease or otherwise. It
has been held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind." 26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of
Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.
G.R. No. L-1787             August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.

Tirona, Gutierrez and Adorable for appellant.

Ramon Diokno for appellee.

TUASON, J.:

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what
purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the document in question was
executed. In the court below, the present appellant specified five grounds for his opposition, to wit:
(1) that the deceased never executed the alleged will; (2) that his signature appearing in said will
was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well
as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental witnesses was
incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue
and improper pressure and influence on the part of the beneficiaries instituted therein, principally the
testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud or trick.

In this instance only one of these objections is reiterated, formulated in these words: "That the
court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required
by law." To this objection is added the alleged error of the court "in allowing the petitioner to
introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner
rested his case and over the vigorous objection of the oppositor.

The will in question comprises two pages, each of which is written on one side of a separate sheet.
The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a
fatal defect.

The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means
of preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40
Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be
necessary, is supplied by other forms of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is clearly identified as the first page by the
internal sense of its contents considered in relation to the contents of the second page. By their
meaning and coherence, the first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered page contains the caption
"TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his
testamentary faculty, — all of which, in the logical order of sequence, precede the direction for the
disposition of the marker's property. Again, as page two contains only the two lines above
mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the
other sheet can not by any possibility be taken for other than page one. Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error, the matter of the
credibility of the witnesses is assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one
of the witnesses can be supposed to have perceived, or to recall in the same order in which they
occurred.

Everyday life and the result of investigations made in the field of experimental psychology
show that the contradictions of witnesses generally occur in the details of a certain incident,
after a long series of questioning, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49
Phil., 99.)

The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this
was that the testator was suffering from "partial paralysis." While another in testator's place might
have directed someone else to sign for him, as appellant contends should have been done, there is
nothing curious or suspicious in the fact that the testator chose the use of mark as the means of
authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring
a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs.
Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)

With reference to the second assignment of error, we do not share the opinion that the trial court
communicated an abuse of discretion in allowing the appellant to offer evidence to prove knowledge
of Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his
case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of
evidence. It is within the discretion of the court whether or not to admit further evidence after the
party offering the evidence has rested, and this discretion will not be reviewed except where it has
clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or
not it will allow the case to be reopened for the further introduction of evidence after a motion or
request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court
has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or
has denied the same, or after the motion has been granted, if the order has not been written, or
entered upon the minutes or signed. (64 C. J., 164.)

In this jurisdiction this rule has been followed. After the parties have produced their respective direct
proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer evidence upon their original case,
and its ruling will not be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional
evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence
or mistake, or where the purpose of the evidence is to the evidence is to correct evidence previously
offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission
to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.

Although alien to the second assignment of error, the appellant impugns the will for its silence on the
testator's understanding of the language used in the testament. There is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter that may be established by
proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the
probate of a will written in Tagalog was ordered although it did not say that the testator knew that
idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator
resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.

The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is
affirmed, with costs.
G.R. No. 147145            January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, petitioner,

vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals of 12
January 2001 in CA-G.R. CV No. 47644. The Court of Appeals sustained the Resolution3 of the
Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"), admitting to
probate the last will and testament of Alipio Abada ("Abada").

The Antecedent Facts

Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died sometime in September
1943. Both died without legitimate children.

On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of Negros
Occidental (now RTC-Kabankalan) a petition,5 docketed as SP No. 070 (313-8668), for the probate
of the last will and testament ("will") of Abada. Abada allegedly named as his testamentary heirs his
natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio.

Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will when he
died in 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed
for the following reasons: (1) it was not executed and attested as required by law; (2) it was not
intended as the last will of the testator; and (3) it was procured by undue and improper pressure and
influence on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the alleged
intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and
Elena Abada ("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela
Tronco ("Levi Tronco, et al."), also opposed the petition. The oppositors are the nephews, nieces
and grandchildren of Abada and Toray.

On 13 September 1968, Alipio filed another petition6 before the RTC-Kabankalan, docketed as SP

No. 071 (312-8669), for the probate of the last will and testament of Toray. Caponong, Joel Abada,
et al., and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP No. 070
(313-8668).

On 20 September 1968, Caponong filed a petition7 before the RTC-Kabankalan, docketed as SP No.

069 (309), praying for the issuance in his name of letters of administration of the intestate estate of
Abada and Toray.

In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since
the oppositors did not file any motion for reconsideration, the order allowing the probate of Toray’s
will became final and executory.8
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble
("Caponong-Noble") Special Administratrix of the estate of Abada and Toray.9 Caponong-Noble
moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan denied
the motion in an Order dated 20 August 1991.10

Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in
an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the
case for decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as
follows:

There having been sufficient notice to the heirs as required by law; that there is substantial
compliance with the formalities of a Will as the law directs and that the petitioner through his
testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution
of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said
Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed
probate.

As prayed for by counsel, Noel Abbellar11 is appointed administrator of the estate of Paula Toray who
shall discharge his duties as such after letters of administration shall have been issued in his favor
and after taking his oath and filing a bond in the amount of Ten Thousand (₱10,000.00) Pesos.

Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue
discharging her duties as such until further orders from this Court.

SO ORDERED.12

The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the
petition for probate, that is, whether the will of Abada has an attestation clause as required by law.
The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter
forecloses all other issues.

Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.

In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the
RTC-Kabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate
the will of Abada.

Hence, the present recourse by Caponong-Noble.

The Issues

The petition raises the following issues:

1. What laws apply to the probate of the last will of Abada;

2. Whether the will of Abada requires acknowledgment before a notary public;13

3. Whether the will must expressly state that it is written in a language or dialect known to the
testator;
 4. Whether the will of Abada has an attestation clause, and if so, whether the attestation
clause complies with the requirements of the applicable laws;

5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada
is written in a language known to Abada;

6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.

The Ruling of the Court

The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of
Abada.

The Applicable Law

Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or
the Old Civil Code, and Act No. 190 or the Code of Civil Procedure14 which governed the execution
of wills before the enactment of the New Civil Code.

The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618
of the Code of Civil Procedure, as amended by Act No. 2645,15 governs the form of the attestation
clause of Abada’s will.16 Section 618 of the Code of Civil Procedure, as amended, provides:

SEC. 618. Requisites of will. – No will, except as provided in the preceding section,17 shall be valid to
pass any estate, real or personal, nor charge or affect the same, unless it be written in the language
or dialect known by the testator and signed by him, 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 each other. 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, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall state the number
of sheets or pages used, upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name, under his express direction,
in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other.

Requisites of a Will under the Code of Civil Procedure

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:

(1) The will must be written in the language or dialect known by the testator;

(2) The will must be signed by the testator, or by the testator’s name written by some other
person in his presence, and by his express direction;

(3) The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other;

(4) The testator or the person requested by him to write his name and the instrumental
witnesses of the will must sign each and every page of the will on the left margin;
 (5) The pages of the will must be numbered correlatively in letters placed on the upper part
of each sheet;

(6) The attestation shall state the number of sheets or pages used, upon which the will is
written, and the fact that the testator signed the will and every page of the will, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the witnesses witnessed and signed the will and all pages of the will in the
presence of the testator and of each other.

Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or
dialect known to the testator. Further, she maintains that the will is not acknowledged before a
notary public. She cites in particular Articles 804 and 805 of the Old Civil Code, thus:

Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
xxx18

Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.19 Article 804 of the Old
Civil Code is about the rights and obligations of administrators of the property of an absentee, while
Article 806 of the Old Civil Code defines a legitime.

Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is
taken from Section 618 of the Code of Civil Procedure.20 Article 806 of the New Civil Code is taken
from Article 685 of the Old Civil Code21 which provides:

Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the
testator, or, should they not know him, he shall be identified by two witnesses who are acquainted
with him and are known to the notary and to the attesting witnesses. The notary and the witnesses
shall also endeavor to assure themselves that the testator has, in their judgment, the legal capacity
required to make a will.

Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700
and 701, are also required to know the testator.

However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil Code. Under the Code
of Civil Procedure, the intervention of a notary is not necessary in the execution
of any will.23 Therefore, Abada’s will does not require acknowledgment before a notary public. 1awphi1.nét

Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish
language. She alleges that such defect is fatal and must result in the disallowance of the will. On this
issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and that it is
now too late to raise the issue on appeal. We agree with Caponong-Noble that the doctrine of
estoppel does not apply in probate proceedings.24 In addition, the language used in the will is part of
the requisites under Section 618 of the Code of Civil Procedure and the Court deems it proper to
pass upon this issue.

Nevertheless, Caponong-Noble’s contention must still fail. There is no statutory requirement to state
in the will itself that the testator knew the language or dialect used in the will.25 This is a matter that a
party may establish by proof aliunde.26 Caponong-Noble further argues that Alipio, in his testimony,
has failed, among others, to show that Abada knew or understood the contents of the will and the
Spanish language used in the will. However, Alipio testified that Abada used to gather Spanish-
speaking people in their place. In these gatherings, Abada and his companions would talk in the
Spanish language.27 This sufficiently proves that Abada speaks the Spanish language.

The Attestation Clause of Abada’s Will

A scrutiny of Abada’s will shows that it has an attestation clause. The attestation clause of Abada’s
will reads:

Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en
presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen
izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el
margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales
estan paginadas correlativamente con las letras "UNO" y "DOS’ en la parte superior de la carrilla.28

Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble
alleges that the attestation clause fails to state the number of pages on which the will is written.

The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos
hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of
the two pages consisting of the same" shows that the will consists of two pages. The pages are
numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase "las
cuales estan paginadas correlativamente con las letras "UNO" y "DOS."

Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator
signed the will and its every page in the presence of three witnesses. She then faults the Court of
Appeals for applying to the present case the rule on substantial compliance found in Article 809 of
the New Civil Code.29

The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio Abada
como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador
firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo."
The English translation is: "Subscribed and professed by the testator Alipio Abada as his last will and
testament in our presence, the testator having also signed it in our presence on the left margin of
each and every one of the pages of the same." The attestation clause clearly states that Abada
signed the will and its every page in the presence of the witnesses.

However, Caponong-Noble is correct in saying that the attestation clause does not indicate the
number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on
substantial compliance in determining the number of witnesses. While the attestation clause does
not state the number of witnesses, a close inspection of the will shows that three witnesses signed it.

This Court has applied the rule on substantial compliance even before the effectivity of the New Civil
Code. In Dichoso de Ticson v. De Gorostiza,30 the Court recognized that there are two divergent
tendencies in the law on wills, one being based on strict construction and the other on liberal
construction. In Dichoso, the Court noted that Abangan v. Abangan,31 the basic case on the liberal
construction, is cited with approval in later decisions of the Court.

In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal construction of applicable
laws, enumerated a long line of cases to support her argument while the respondent, contending
that the rule on strict construction should apply, also cited a long series of cases to support his view.
The Court, after examining the cases invoked by the parties, held:

x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be
applicable to all cases. 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 will, 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. x x x.

An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts
attending the execution of the will, so that in case of failure of the memory of the subscribing
witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will,
therefore, should not be rejected where its attestation clause serves the purpose of the law. x x x 33 1a\^/phi1.net

We rule to apply the liberal construction in the probate of Abada’s will. Abada’s will clearly shows
four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are
three witnesses to the will. The question on the number of the witnesses is answered by an
examination of the will itself and without the need for presentation of evidence aliunde. The Court
explained the extent and limits of the rule on liberal construction, thus:

[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they draw the dividing line
with precision. They do not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself.  They only permit a probe into the
l^vvphi1.net

will, an exploration within its confines, to ascertain its meaning or to determine the existence
or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results.34 (Emphasis supplied)

The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing
on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and
professed before the three witnesses that the document was his last will, and (2) Abada signed the
will and the left margin of each page of the will in the presence of these three witnesses.

Finally, Caponong-Noble alleges that the attestation clause does not expressly state the
circumstances that the witnesses witnessed and signed the will and all its pages in the presence of
the testator and of each other. This Court has ruled:

Precision of language in the drafting of an attestation clause is desirable. However, it is not

imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the
language employed it can reasonably be deduced that the attestation clause fulfills what the law
expects of it.35

The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo
firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every one
of us also signed in our presence and of the testator." This clearly shows that the attesting witnesses
witnessed the signing of the will of the testator, and that each witness signed the will in the presence
of one another and of the testator.

WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV
No. 47644.
SO ORDERED.
G.R. No. 42258           September 5, 1936

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,

vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.

Leodegario Azarraga for oppositor-appellant.

DIAZ, J.:

There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January
29, 1935, praying for the reconsideration of the decision of the court and that of the same date,
praying for a new trial.

The oppositor bases her motion for reconsideration upon the following facts relied upon in her
pleading:

1. That the testatrix did not personally place her thumbmark on her alleged will;

2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces
of the will where she should place her thumbmarks;

3. That the will in question was not signed by the testatrix on the date indicated therein;

4. That the testatrix never made the will in question; and

5. That on the date the will in question was executed, the testatrix was no longer in a physical or
mental condition to make it.

We have again reviewed the evidence to determine once more whether the errors assigned by the
oppositor in her brief have not been duly considered, whether some fact or detail which might have
led us to another conclusion has been overlooked, or whether the conclusions arrived at in our
decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She had
a slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel.
Said physician again visited her three or four days later and found her still suffering from said illness
but there was no indication that she had but a few days to live. She ate comparatively well and
conserved her mind and memory at least long after noon of September 7, 1933. She took her last
nourishment of milk in the morning of the following day, September 8, 1933, and death did not come
to her until 11 o'clock sharp that morning.

The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on
September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said
attorney her desire to make a will and bequeath her property to the petitioner Victorio Payad in
compensation according to her, for his diligent and faithful services rendered to her. Victorio Payad
had grown up under the care of the testatrix who had been in her home from childhood. The will was
written by Attorney Almario in his own handwriting, and was written in Spanish because he had been
instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose
Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all
the contents of the document and requested Attorney Almario to write her name where she had to
sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary
strength to hold a pen. She did after having taken the pen and tried to sign without anybody's help.
Attorney Almario proceeded to write the name of the testatrix on the three pages composing the will
and the testatrix placed her thumbmark on said writing with the help of said attorney, said help
consisting in guiding her thumb in order to place the mark between her name and surname, after she
herself had moistened the tip of her thumb with which she made such mark, on the ink pad which
was brought to her for said purpose. Said attorney later signed the three pages of the will in the
presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who,
in turn, forthwith signed it successively and exactly under the same circumstances above stated.

In support of her claim that the testatrix did not place her thumbmark on the will on September 7,
1983, and that she never made said will because she was no longer physically or mentally in a
condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de
Leon and her own.

Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the
morning of September 7, 1933, in the house of the deceased where they were then living, and that
the first time that they saw him there was at about 12 o'clock noon on September 8th of said year,
when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario
arrived there accompanied only by woman named Pacing. They did not state that Almario was
accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of
the will. Said two witnesses, however, could not but admit that their room was situated at the other
end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that
their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria
Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez
stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria
Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the
kitchen which was situated under the house. Under such circumstances it is not strange that the two
did not see the testatrix when, according to the evidence for the petitioner, she made her will and
signed it by means of her thumbmark. In order to be able to see her and also Almario and the
instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room
where the deceased was, or at least the adjoining room where the will was prepared by Attorney
Almario, but they did not do so.

Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so
weak that she could not move and that she could hardly be understood because she could no longer
enunciate, making it understood thereby, that in such condition it was absolutely impossible for her
to make any will. The attorney for the oppositor insists likewise and more so because, according to
him and his witness Paz de Leon, two days before the death of the testatrix, or on September 6,
1933, she could not even open her eyes or make herself understood.

The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the
petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will
because, to corroborate them, we have of record the testimony of the physician of the deceased and
the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome of
these proceedings does not affect them in the least. The two testified that two, three or four days
before the death of the testatrix, they visited her in her home, the former professionally, and the
latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a
conversation. They stated that she spoke to them intelligently; that she answered all the questions
which they had put to her, and that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for
reconsideration is unfounded.

The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the
deceased left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R.
Yangco, with instructions not to open it until after her death; (2) that there are witnesses competent
to testify on the letter in question, in addition to other evidence discovered later, which could not be
presented at the trial; (3) that in the letter left by the deceased, she transfers all her property to
Teodoro R. Yangco stating therein that, upon her death, all the property in question should become
Yangco's. From this alleged fact, the oppositor infers that the deceased never had and could not
have had the intention to make the will in question, and (4) that said oppositor knew of the existence
of said letter only after her former attorney, Alejandro Panis, had been informed thereof in May,
1935, by one of Teodoro R. Yangco's attorneys named Jose Cortes.

Subsequent to the presentation of the motion for a new trial, the oppositor filed another
supplementary motion alleging that she had discovered some additional new evidence consisting in
the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that Victorio Payad had
called him on September 5, 1933, to prepare the will of the deceased but he did not do so because
after seeing her he had been convinced that she could not make a will because she had lost her
speech and her eyes were already closed.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts
alleged by the oppositor, are attached to both motions for a new trial.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly
discovered evidence, and are not admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long before
this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney Jose
Cortes revealed to the attorney for oppositor the fact that the deceased had left a letter whereby she
transferred all her property to Teodoro R. Yangco, and the judgment was rendered only on January
15, 1936, or eight months later.

The oppositor contends that she had no reason to inform the court of said newly discovered
evidence inasmuch as the judgment of the lower court was favorable to her. She, however,
overlooks the fact that she also appealed from the decision of the lower court and it was her duty,
under the circumstances, to inform this court of the discovery of said allegedly newly discovered
evidence and to take advantage of the effects thereof because, by so doing, she could better
support her claim that the testatrix made no will, much less the will in question. Said evidence, is not
new and is not of the nature of that which gives rise to a new trial because, under the law, in order
that evidence may be considered newly discovered evidence and may serve as a ground for a new
trial, it is necessary (a) that it could not have been discovered in time, even by the exercise of due
diligence; (b) that it be material, and (c) that it also be of such a character as probably to change the
result if admitted (section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).

The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering
it newly discovered evidence, it will be sufficient to support the decision of the lower court and modify
that of this court. It is simply hearsay or, at most, corroborative evidence. The letter of the deceased
Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered important or
material evidence but this court has not the letter in question before it, and no attempt was ever
made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not
more competent than that of Attorney Jose Cortes because, granting that when he was called by
Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went to her house on
September 5, 1933, the deceased was almost unconscious, was unintelligible and could not speak,
it does not necessarily mean that on the day she made her will, September 7, 1933, she had not
recovered consciousness and all her mental faculties to capacitate her to dispose of all her property.
What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not and can
not be newly discovered evidence of the character provided for by law, not only because it does not
exclude the possibility that testatrix had somewhat improved in health, which possibility became a
reality at the time she made her will because she was then in the full enjoyment of her mental
faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio
Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court
of First Instance, Attorney Viola was present, and the oppositor then could have very well called him
to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify
about, yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150
of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to
present as the last witness Attorney Fernando Viola who was called by the petitioner Victoria
Payad to prepare the will of the deceased in his favor on September 5, 1933.

COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS:
No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom you wish to call to the
witness stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge
Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If
the other party, Your Honor, is willing to admit what said witness is going to testify in the
sense that said Attorney Fernando Viola went to the house of the deceased on September 5,
1933, for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio
Payad; if the other party admits that, then I am going waive the presentation of the witness
Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party would not admit
that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without
prejudice to the other party's calling the witness it may wish to call.

COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness
stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it
might have been because she considered his testimony unimportant and unnecessary, and at the
present stage of the proceedings, it is already too late to claim that what said attorney may now
testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court in the original decision, and the
additional reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new
trial on the ground of newly discovered evidence is limited to ordinary cases pending in this court on
bills of exceptions, the motion for reconsideration and a new trial filed by the oppositor are hereby
denied, ordering that the record be remanded immediately to the lower court. So ordered.
Matias vs. Salud

L-10751 June 23, 1958

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Cavite xxx denying the probate of the
purported will of the late Gabina Raquel.

The document in question appears to be composed of three pages. On the lower half of the second
page, preceding the attestation clause appears the signature “Gabina Raquel” which is apparently of
admitted authenticity. Alongside it is a smudge in violet ink, with blurred ridge lines, claimed by the
proponents to be a thumbmark affixed by the testatrix. On the third page, at the end of the
attestation clause appear the signatures appearing on the left margin of each page; and on the
upper part of each page’s left margin appears a violet ink smudge similar to the one previously
described, accompanied by the written words “Gabina Raquel" and underneath said name “by
Lourdes Samonte.”

xxx xxx xxx

The proponent’s evidence is to the effect that the deceased instructed Attorney Agbunag to draft her
will; that it was brought to her in the morning of January 27, 1950; that she had the witnesses
summoned and received them in the ‘ante sola' of her house; that when the witnesses were seated
around a table with her and Attorney Agbunag, the will was read by the latter; that Gabina Raquel
manifested conformity thereto and thumbmarked the foot of the document and the left margin of
each page. Allegedly upon Agbunag’s insistence, she attempted to sign with his fountain pen, but
was only able to affix the signature at the end of the testamentary dispositions in the lower half of
page two because immediately after, she dropped the pen, grasping her right shoulder and
complaining of pain. After 20 minutes, Attorney Agbunag, seeing that Gabina Raquel could not
proceed, instructed Lourdes Samonte to write “Gabina Raquel by Lourdes Samonte” next to each
thumbmark, and thereafter witnesses Lourdes Samonte, Felipa Samala and Modesta Gonzales
signed, in that order, at the foot of the attestation clause and at the left margin of each page. It is to
be noted that witness Modesta Gonzales, a 64-year old woman did not testify as she was found to
be suffering from high blood pressure, and proponent’s expert evidence was to the effect that her
memory was impaired, and unusual excitement might cost her life. The probate having been
opposed by Basilia Salud, a niece of Gabina Raquel, the case was set for trial. After hearing, Judge
Primitivo Gonzales of the Court of First Instance of Cavite rendered judgment upholding the
contentions of the oppositor and denied the document’s admission to probate, principally on the
following grounds: (1) That the attestation clause did not state that the testatrix and the witnesses
signed each and every page of the will; and while the left margins of each page exhibit the words
‘Gabina Raquel by Lourdes Samonte,’ the attestation does not express that Lourdes was expressly
directed to sign for the testatrix.

xxx xxx xxx

The trial court refused credence to the evidence for the proponents on the basis of the expert
testimony of Captain Jose Fernandez of the Philippine Constabulary’s Criminal Laboratory, to the
effect that (1) fingerprints appearing at the end and left margins of the will were impressed over the
name of the testatrix, and after the name was written, contrary to what the proponent’s witnesses
asserted: (2) that the words “Gabina Raquel by Lourdes Samonte” in the upper left hand margin of
page two of the will were falsified and appear to have been written over a previous tracing; (3) that
the person who wrote “Gabina Raquel by Lourdes Samonte” is different from the one who wrote
“Lourdes Samonte” as signature of an attesting witness; (4) that the signature ‘Lourdes Samonte’ on
the left margin of page 3 of the testament was written only after that of Felipa Samal, when the
testimony for the proponent was that they were written in the reverse order; and (5) that the pen
used in signing “Gabina Raquel" at the foot of the will had separated nibs, while the other signatures
in the document were written with a round point pen, again contrary to the contention for the
proponent that only one pen was used.

After careful consideration of the testimony on record, we are of the opinion that the facts adverted
to by the expert for the contestant do not clearly support the conclusions drawn by him. Thus, his
assertion that the fingerprints were affixed after writing the name of the testatrix appears to be an
inference drawn from the fact that the ink of the writing failed to spread along the ridge lines of the
fingerprints. This conclusion obviously failed to take into account the fact that the evidence is that
some 10 or 20 minutes lapsed between the affixing of the fingerprints and the writing of the marginal
signatures, due to the fact that they were not written until after a long wait for the testatrix's attack of
pain to subside. There was sufficient time for the fingerprint (which was made in rubber stamp ink) to
dry, and recognized authorities on the matter point out that “ink lines over rubber stamps will spread
out if the stamp is not dry” (Soderman-O’Connel, Modem Criminal Investigation, 2d Ed., p. 453); and
“if the stamp impression is allowed to dry thoroughly before the writing is written over it, the ink will
not run out as it does on a damp ink line” (Osborn, Questioned Documents, 2d Ed., p. 514). To such
effect, the only composition of the rubber stamp ink no doubt contributes. Thus, while the spreading
out or running out of the writing ink along the stamping ink lines proves that the writing was made
later, the absence of spread does not prove that stamping ink lines were made after the writing was
done.

xxx xxx xxx

Finally, the contestant urges that the fingermark of the testatrix can not be regarded as her valid
signature since it does not show distinct identifying ridge lines; and thence, that the attestation
clause, transcribed earlier in this opinion, should be held defective because it fails to state that
Lourdes Samonte signed for the testator. This Court has repeatedly held that the legal requisite that
the will should be signed by testator is satisfied by a thumbprint or other mark affixed by him (De
Gala vs. Ona, 53 Phil. 104; Dolar vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O.G. 2817; Lopez
vs. Liboro, 46 O.G. [Supp. to No. 1] 211); and that where such mark is affixed by the decedent, it is
unnecessary to state in the attestation clause that another person wrote the testator’s name at his
request (Payad vs. Tolentino, 62 Phil. 849). While in some of these cases the signing by mark was
described in the will or in the attestation clause, it does not appear that the Court ever held that the
absence of such description is a fatal defect.

Appellant relies on the case of Garcia v. Lacuesta, G.R. L-4067, Nov. 29, 1951, wherein this Court
denied probate holding that a will signed with a cross written after the testator’s name is not a
sufficient signature. But in that case no showing was made that the cross mark was the testator’s
habitual signature nor was any explanation given why he should use a cross when he knew how to
sign. In the case now before us, it was shown that the herpes zoster that afflicted the right arm and
shoulder of the testatrix made writing a difficult and painful act, to the extent that, after writing one
signature on the second page, she dropped the pen because of an attack of pain that lasted many
minutes, and evidently discouraged attempts to sign.

As to the clarity of the ridge impressions, it is so dependent on aleatory circumstances (consistency

of the ink, overinking, slipping of the finger, etc.) as to require a dexterity that can be expected of
very few persons; and we do not believe testators should be required to possess the skill of trained
officers. It is to be conceded that where a testator employs an unfamiliar way of signing, and both
the attestation clause and the will are silent on the matter, such silence is a factor to be considered
against the authenticity of the testament; but the failure to describe the unusual signature by itself
alone is not sufficient to refuse probate when the evidence for the proponent fully satisfies the court
(as it does satisfy us in this case) that the will was executed and witnessed as required by law.

WHEREFORE, the judgment appealed from is reversed and the document xxx ordered admitted to
probate.
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.
G.R. No. L-6285             February 15, 1912

PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another,
No. 6284,1 just decided by this court, wherein there was an application for the probate of an alleged
last will and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last
will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa,
and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said
will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or write, the same had been read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred
to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the
probate of this later will were pending at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon
the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix
to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the
will than that of the person whose handwriting it was alleged to be. We do not believe that the mere
dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted
testimony of all the witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix provided it is written at her request and in her
presence and in the presence of all the witnesses to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her name, being, from its appearance, not the
same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such
fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not
believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his expenses
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who
signs the name of the testator for him must also sign his own name The remainder of the section
reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed
by some other person, at his express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the will
was in fact signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her presence and in the
presence of each other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that it is not essential to the validity of the
will. Whether one parson or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that
the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the
law; and the reasons underlying the provisions of the statute relating to the execution of wills do not
in any sense require such a provision. From the standpoint of language it is an impossibility to draw
from the words of the law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable
to write may be signed by another by express direction to any instrument known to the law. There is
no necessity whatever, so far as the validity of the instrument is concerned, for the person who
writes the name of the principal in the document to sign his own name also. As a matter of policy it
may be wise that he do so inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the principal. But as a matter of
essential validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it be written
by himself or by another at his request, it is none the less valid, and the fact of such signature can be
proved as perfectly and as completely when the person signing for the principal omits to sign his
own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the
person signing the name of the principal is, in the particular case, a complete abrogation of the law
of wills, as it rejects and destroys a will which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The
headnote in the case last above stated gives an indication of what all of cases are and the question
involved in each one of them. It says:
 The testatrix was not able to sign it for her. Instead of writing her name he wrote his own
upon the will. Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the
person who signed the will for the testator wrote his own name to the will instead of writing that of
the testator, so that the testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall
be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form:
"By the testator. John Doe, Richard Roe." All this must be written by the witness signing at
the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that
the person who was authorized to sign the name of the testator to the will actually failed to sign such
name but instead signed his own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth
no reason whatever why the will involved in the present litigation should not be probated. The due
and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon
the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have already spoken. We there held that said later will not
the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter
an order in the usual form probating the will involved in this litigation and to proceed with such
probate in accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

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.
G.R. No. L-5971            February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small
room with the testator and the other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and testament of the
deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down
in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this subscribing witness been
proven to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have been invalid as
a will, the attaching of those signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses
may be held to have executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that
"at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and
the subscribing witnesses to an alleged will sign the instrument in the presence of each other does
not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of
its subscription by each of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as
the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

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 the Cebuano-Visayan dialect, the will consists of
two pages. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.

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

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

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex parte praying for a thirty-day period within which 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:

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 lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one another.

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

interpreted to the witnesses, it shall be interpreted to them.

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

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

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in

witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

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

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

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

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

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

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

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".
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 win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation clause does
not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.

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

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

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

SO ORDERED.
G.R. No. L-18979             June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased,
and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator.  1äwphï1.ñët

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as
his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano
filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano
filed her amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate. From this
order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00,
on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and
its duplicate were subscribed at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that
the attestation clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing
in the duplicate original were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three
other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and
we feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the
charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite evidence against the validity
of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set
of signatures in every page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in admitting the amended
petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.
G.R. No. L-21151             February 25, 1924

In re will of Antonio Vergel de Dios, deceased.

RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.

Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough for appellants.
Eusebio Orense & Antonio M. Opisso for appellees.

ROMUALDEZ, J.:

The question in this case is as to the validity of the document Exhibit A as a will, which was
propounded by Ramon J. Fernandez for probate, and contested by Fernando Vergel de Dios and
Francisco, Ricardo and Virgilio Rustia, the court of First Instance of Manila having denied its
probate.

The applicant takes this appeal, assigning error to the action of the lower court in holding the
attestation fatally defective and in not finding Act No. 2645 void.

The defects attributed to the will by the contestants are as follows, to wit:

(a) It was not sufficiently proven that the testator knew the contents of the will.

(b) The testator did not sign all the pages of the will.

(c) He did not request anybody to attest the document as his last will.

(d) He did not sign it in the presence of any witness.

(e) The witnesses did not sign it in the presence of the testator, or of each other, nor with
knowledge on the part of the testator that they were signing his will.

(f ) The witnesses did not sign the attestation clause before the death of the testator.

(g) This clause was written after the execution of the dispositive part of the will and was
attached to the will after the death of the testator.

(h) The signatures of the testator on page 3 of Exhibit A are not authentic.

The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the testator, the
latter's mind was perfectly sane and he understood it: that he signed all the pages of the will proper,
although he did not sign the page containing the attestation clause; that while he did not personally
call the witnesses, yet the latter were invited by Attorney Lopez Lizo to act as such in his presence.
The law does not require that the testator precisely be the person to request the witnesses to attest
his will. It was also sufficiently established in the record, beside being stated in the attestation
clause, that the testator signed the will in the presence of the three witnesses and that the latter, in
turn, signed it in the presence of the testator and of each other, the testator knowing that the
witnesses were signing his will; that the witnesses signed the attestation clause before the death of
the testator; that this clause, with the names of the witnesses in blank, was prepared before the
testator signed the will, and that the sheet containing said clause, just as those of the will proper,
was a loose sheet, and that all the four sheets of which the will Exhibit A was actually composed
were kept together and are the very ones presented in this case; and finally, that the signatures of
the testator on page 3 of said exhibit are authentic.

It thus appearing from the record that there are no such defects as those mentioned by the
opponents, and it having been proven that the testator executed said will in a language known by
him and consciously, freely and spontaneously, it would seen unnecessary to go further, and the
matter might be brought to a close right here, by holding the will in question valid and allowable to
probate, were it not for the fact that the trial court and the opponents questioned the sufficiency and
validity of the attestation clause because the sheet on which it is written is not numbered, and it is
not stated there that the testator signed on the margin of each sheet of the will in the presence of the
three witnesses, or that the latter signed it is the presence of the testator and of each other, and
specially because said attestation clause is not signed by the testator either at the margin or the
bottom thereof.

As to the numbering of the sheet containing the attestation clause, it is true that it does not appeal
on the upper part of the sheet, but it does not appear in its text, the pertinent part of which is copied
hereinafter, with the words, having reference to the number of sheets of the will, underscored,
including the page number of the attestation:

* * * We certify that the foregoing document written in Spanish, a language known by the
testator Antonino Vergel de Dios, consisting of three sheet actually used, correlatively
enumerated, besides this sheet . . . .

If, as stated in this clause, the foregoing document consists of three sheets, besides that of the
clause itself, which is in singular, it is clear that such a sheet of the attestation clause is
the fourth and that the will, including said sheet, has four sheets. This description contained in the
clause in question constitutes substantial compliance with the requirements prescribed by the law
regarding the paging. So it was held by this Court in the case of Abangan vs. Abangan (40 Phil.,
476), where the sheet containing the attestation, as well as the preceding one, was also not paged.
Furthermore the law, as we shall see later on, does not require that the sheet containing nothing but
the attestation clause, wholly or in part, be numbered or paged. Consequently this lack of paging on
the attestation sheet does not take anything from the validity of the will.

Turning now to the question whether or not in this clause it is stated that the testator signed on the
margin of each sheet of the will, in the presence of the witnesses and the latter in the presence of
each other, let us see what is said in said clause on this point, and to this end its pertinent part is
hereinafter transcribed and is as follows:

* * * and he (the testator) signed at the bottom of the aforesaid will in our presence and we at
his request did the same in his presence and in that of each other as witnesses to the will,
and lastly, the testator, as well as we, as witnesses, signed in the same manner on the left
margin of each sheet. (Emphasis ours.)

The underscored phrase "in the same manner" cannot in the instant case mean, and it in fact means
nothing, but that the testator and the witnesses signed on the left margin of each sheet of the will "in
the same manner" in which they signed at the bottom thereof, that is, the testator in the presence of
the witnesses and the latter in the presence of the testator and of each other. This phrase in the
same manner cannot, in view of the context of the pertinent part, refer to another thing, and was
used here as a suppletory phrase to include everything and avoid the repetition of a long and difficult
one, such as what is meant by it. The same section 618 of the Code of Civil Procedure, in order to
avoid the repetition of the same long phrase about the testator having signed in the presence of the
witnesses and the latter in the presence of each other, resorts to a similar expression in the second
paragraph and says, "as aforesaid."

Concerning the absolute absence of the signature of the testator from the sheet containing the
attestation clause, this point was already decided in the above cited case of Abangan vs. Abangan,
where this court held that:

The testator's signature is not necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the testator.

In that case of Abangan vs. Abangan it was held that the signature of the testator is not necessary in
the attestation clause, but the theory is not announced that such a clause is unnecessary to the
validity to the will.

For this reason such doctrine does not annul the judgment in the case of Uy Coque vs. Navas L.
Sioca (43 Phil., 405), where in effect the doctrine, among others, was laid down that the attestation
clause is necessary to the validity of the will. One of the points on which greatest stress was laid in
that case Uy Coque is that the requirements of the law regarding the number of the pages used, the
signing of the will and of each of its pages by the testator in the presence of three witnesses, and the
attestation and signing of the will and of each of its pages by the witnesses in the presence of each
other cannot be proven aliunde but by the attestation clause itself which must express the
complaince of the will with such requirements. But it was not held in that case of Uy Coque that the
signature of the testator was necessary in the attestation clause, nor was such point discussed
there, which was the point at issue in the case of Abangan vs. Abangan, supra.

The appellees, however, argue that such clause in the case of Abangan vs. Abangan begins at the
bottom and on the same sheet in which the testamentary provision terminated, that is to say, the will
properly speaking. Even then if it is intended to commit misrepresentation or fraud, which are the
things that with the requirements of the law for the making and attesting of wills it is intended to
avoid, it is just the same that the clause; as in the case of Abangan vs. Abangan, begins at the
bottom of the will properly speaking, as, like the case before us, it is wholly contained in a separate
sheet. The fact is that this separate sheet, containing the attestation clause wholly or in part, is not
signed any place by the testator in the case of Abangan vs. Abangan, as it is not in the present case.

Section 618 of the code of Civil Procedure, as amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in general terms the requirements to be met by a will
executed after said Code took effect, to wit, that the language or dialect in which it is written be
known by the testator, that it be signed by the latter or by another person in the name of the testator
by his express direction and in his presence, and that it be attested and signed by three or more
credible witnesses in the presence of the testator and of each other.

These general rules are amplified in the next two paragraphs as to the special requirements for the
execution of the will by the testator and the signing thereof by the witnesses, with which the second
paragraph of the section deals, and as to the attestation clause treated in the third and last
paragraph of said section 618.

For this reason the second paragraph of this section 618 says:

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, on the left
 margin, and said pages shall be numbered correlatively in letters placed on the upper part of
each sheet.

These are the solemnities that must surround the execution of the will properly speaking, without any
reference whatsoever to the attestation clause not treated in this second paragraph. It is in this
second paragraph which deals only with the will (without including the attestation clause), that the
signature or name of the testator and those of the witnesses are mentioned as necessary on the left
margin of each and everyone of the sheets of the will (not of the attestation clause), as well as the
paging of said sheet (of the will, and not of the attestation clause which is not yet spoken of).

Now, are the signatures of the testator and the paging of the will also necessary in the attestation
clause? Let us see the last paragraph of this section 618 of the Code which already deals with the
requirements for the attestation clause. This last paragraph reads thus:

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

As may be seen this last paragraph refers to the contents of the text of the attestation, not the
requirements or signatures thereof outside of its text. It does not require that the attestation be
signed by the testator or that the page or sheet containing it be numbered.

From this analysis of our law now in force it appears:

First. That the will must have an attestation clause as a complement, without which it cannot
be probate and with which only not aliunde (Uy Coque vs. Navas L. Sioca , supra) may the
requirements to be stated in its text be proven. The attestation clause must be prepared and
signed, as in the instant case, on the same occasion on which the will is prepared and
signed, in such a way that the possibility of fraud, deceit or suppression of the will or the
attestation clause be reduced to a minimum; which possibility always exists, as experience
shows, in spite of the many precautions taken by the legislator to insure the true and free
expression of one's last will.

Second. That the will is distinct and different from the attestation, although both are
necessary to the validity of the will, similar, in our opinion, to a document which is not public
so long as it is not acknowledged before a notary, the document being a distinct and different
thing from the acknowledgment, each of which must comply with different requisites, among
which is the signature of the maker which is necessary in the document but not in the
acknowledgment and both things being necessary to the existence of the public document.

Third. That the will proper must meet the requirements enumerated in the second paragraph
of section 618 of the Code of Civil Procedure.

Fourth. That the text of the attestation clause must express compliance with the
requirements prescribed for the will.

In the case at bar the attestation clause in question states that the requirements prescribed for the
will were complied with, and this is enough for it, as such attestation clause, to be held as meeting
the requirements prescribed by the law for it.
The fact that in said clause the signature of the testator does not appear does not affect its validity,
for, as above stated, the law does not require that it be signed by the testator.

We find no merit in the assignment of error raising the question as to the validity of Act No. 2645,
which is valid. For the purposes of this decision, it is not necessary to reason out this conclusion, it
being sufficient for the adjudication of this case to hold the first error assigned by the appellants to
have been demonstrated.

The foregoing conclusions lead us to hold, as we do here by hold, that the documents Exhibit A, as
the last will and testament of the deceased Antonio Vergel de Dios, meets all the requirements
prescribed by the low now in force and therefore it must be allowed to probate as prayed for by the
petitioner.

The judgment appealed from is reversed, and it is ordered that the lower court proceed with the
probate of the will Exhibit A in accordance with law, without express pronouncement as to costs. So
ordered.

Street, Malcolm, Avanceña and Johns, JJ., concur.

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

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

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

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

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

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

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

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

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 vs. 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 by the majority that it may have been only added on a subsequent occasion and not at
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:

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 i 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 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 (article 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 cuncur 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 no 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 answers, 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 writter's simply because it
was signed, not at the conventional place but on the side or on top.
G.R. No. 192916               October 11, 2010

MANUEL A. ECHAVEZ, Petitioner,
vs.
DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE REGISTER OF
DEEDS OF CEBU CITY, Respondents.

RESOLUTION

BRION, J.:

Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which includes Lot
No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985, Vicente donated the subject lots
to petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa.1 Manuel accepted
the donation.

In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen
Construction and Development Corporation (Dozen Corporation). In October 1986, they executed
two Deeds of Absolute Sale over the same properties covered by the previous Contract to Sell.

On November 6, 1986, Vicente died. Emiliano Cabanig, Vicente’s nephew, filed a petition for the
settlement of Vicente’s intestate estate. On the other hand, Manuel filed a petition to approve
Vicente’s donation mortis causa in his favor and an action to annul the contracts of sale Vicente
executed in favor of Dozen Corporation. These cases were jointly heard.

The Regional Trial Court (RTC) dismissed Manuel’s petition to approve the donation and his action
for annulment of the contracts of sale.2 The RTC found that the execution of a Contract to Sell in
favor of Dozen Corporation, after Vicente had donated the lots to Manuel, was an equivocal act that
revoked the donation. The Court of Appeals (CA) affirmed the RTC’s decision.3 The CA held that
since the donation in favor of Manuel was a donation mortis causa, compliance with the formalities
for the validity of wills should have been observed. The CA found that the deed of donation did not
contain an attestation clause and was therefore void.

The Petition for Review on Certiorari

Manuel claims that the CA should have applied the rule on substantial compliance in the
construction of a will to Vicente’s donation mortis causa. He insists that the strict construction of a
will was not warranted in the absence of any indication of bad faith, fraud, or substitution in the
execution of the Deed of Donation Mortis Causa. He argues that the CA ignored the
Acknowledgment portion of the deed of donation, which contains the "import and purpose" of the
attestation clause required in the execution of wills. The Acknowledgment reads:

BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu, personally appeared
VICENTE S. Echavez with Res. Cert. No. 16866094 issued on April 10, 1985 at [sic] Talisay, Cebu
known to me to be the same person who executed the foregoing instrument of Deed of Donartion
Mortis Causa before the Notary Public and in the presence of the foregoing three (3) witnesses who
signed this instrument before and in the presence of each other and of the Notary Public and all of
them acknowledge to me that the same is their voluntary act and deed. [Emphasis in the original.]

THE COURT’S RULING

The CA correctly declared that a donation mortis causa must comply with the formalities prescribed
by law for the validity of wills,4 "otherwise, the donation is void and would produce no
effect." 5 Articles 805 and 806 of the Civil Code should have been applied.

As the CA correctly found, the purported attestation clause embodied in the Acknowledgment portion
does not contain the number of pages on which the deed was written. The exception to this rule in
lavvphil

Singson v. Florentino6 and Taboada v. Hon. Rosal,7 cannot be applied to the present case, as the
facts of this case are not similar with those of Singson and Taboada. In those cases, the Court found
that although the attestation clause failed to state the number of pages upon which the will was
written, the number of pages was stated in one portion of the will. This is not the factual situation in
the present case.

Even granting that the Acknowledgment embodies what the attestation clause requires, we are not
prepared to hold that an attestation clause and an acknowledgment can be merged in one
statement.

That the requirements of attestation and acknowledgment are embodied in two separate provisions
of the Civil Code (Articles 805 and 806, respectively) indicates that the law contemplates two distinct
acts that serve different purposes. An acknowledgment is made by one executing a deed, declaring
before a competent officer or court that the deed or act is his own. On the other hand, the attestation
of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the
instrument before them and to the manner of its execution.8 1avvphi1

Although the witnesses in the present case acknowledged the execution of the Deed of Donation
Mortis Causa before the notary public, this is not the avowal the law requires from the instrumental
witnesses to the execution of a decedent’s will. An attestation must state all the details the third
paragraph of Article 805 requires. In the absence of the required avowal by the witnesses
themselves, no attestation clause can be deemed embodied in the Acknowledgement of the Deed of
Donation Mortis Causa.

Finding no reversible error committed by the CA, the Court hereby DENIES Manuel’s petition for
review on certiorari.

SO ORDERED.
 No. L-26615. April 30, 1970.
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE
JESUS AND DR. JAIME ROSARIO, petitioners, vs. HON.CONRADO M. VASQUEZ, as Judge
of the Court of First Instance of Manila, Branch V, and CONSUELO GONZALES VDA. DE
PRECILLA, respondents.
No. L-26884. April 30, 1970.
REV.FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE
JESUS AND DR.JAIME ROSARIO, petitioners, vs. HON.CONRADO ML VASQUEZ, as Judge
of the Court of First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA,and
CONSUELO GONZALES VDA.DE PRECILLA, respondents.
No. L-27200. April 30, 1970.
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES
VDA.DE PRECILLA, petitioner-administratrix, vs. SEVERINA NARCISO,ROSA NARCISO,
JOSEFINA NARCISO,VICENTE MAURICIO,DELFIN MAURICIO,REMEDIOS
NARCISO,ENCARNACION,NARCISO,MARIA NARCISO,EDUARDO
NARCISO,FR.LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA,MARIA NATIVIDAD DE
JESUS, DR.JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and
PASCUALA NARCISO-MANAHAN, oppositors-appellants.
Succession; Wills; Execution of wills; Where testator is blind, will must be read to him twice;
Reasons.—Where the testator is blind, the will must be read to him twice as required by Article 808 of the
Civil Code. The reason for this 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. Failure to comply with this requirement makes the
will invalid.
Settlement of estate of deceased persons; Administrators; Where administrator holds adverse
interest to estate, he may be removed.—Where the administrator hold interest adverse to the estate or by
his conduct, demonstrated his unfitness or unsuitableness to discharge the trust, he should be removed
from the administration from the estate.
Civil actions; Lis pendens; Not applicable where action does not affect real property or title
thereto.—Notice of the pendency of an action may be recorded in the office of the register of deeds of the
province in which the property is situated if the action affects the title or the right of possession of real
property. It does not apply where the case is concerned merely with the correctness of the denial by the
probate court of the motion for the removal of the special administratrix of the estate which does not
involve the title to or possession of real properties of the estate.

APPEAL from an order of the Court of First Instance of Manila. Vasquez, J.

The facts are stated in the opinion of the Court.

     Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
     Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
     Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent
Consuelo S. Gonzales Vda. de Precilla.
     Lorenzo C. Gella for respondent Register of Deeds of Manila.
     Leandro Sevilla & Ramon C. Aquino for petitioner-administratrix.
     Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, et al.
     Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.
     Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de
Praga.
      Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, et
al.
     George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants
Natividad del Rosario-Sarmiento, et al.

REYES, J.B.L., J.:

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp.
Proc. No. 62618) admitting to probate the alleged last will and testament of the late Gliceria
Avelino del Rosario, dated 29 December 1960. G.R. Nos. L-26615 and L-26864 are separate
petitions for mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the
probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate, for
conflict of interest, and to appoint a new one in her stead; and (2) to order the Register of Deeds
of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 and 81737, registered in
the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly
belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965,
leaving no descendents, ascendants, brother or sister. At the time of her death, she was said to be
90 years old more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased,

petitioned the Court of First Instance of Manila for probate of the alleged last will and testament
of Gliceria A. del Rosario, executed on 20 December 1960, and for her appointment as special
administratrix of the latter’s estate, said to be valued at about P100,000.00, pending the
appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V.
Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956;
(2) Jaime Rosario and children, relatives and legatees in both the 1956 and 1960 wills; Antonio
Jesus de Praga and Marta Natividad de Jesus, wards of the deceased and legatees in the 1956 and
1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del
Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and
Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio,—the latter five groups of
persons all claiming to be relatives of Dona Gliceria within the fifth civil degree. The oppositions
invariably charged that the instrument executed in 1960 was not intended by the deceased to be
her true will; that the signatures of the deceased appearing in the will was procured through
undue and improper pressure and influence on the part of the beneficiaries and/or other persons;
that the testatrix did not know the object of her bounty; that the instrument itself reveals
irregularities in its execution, and that the formalities required by law for such execution have
not been complied with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased,
joined the group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner
Consuelo S. Gonzales Vda. de Precilla as special administratrix, on the ground that the latter
possesses interest adverse to the estate. After the parties were duly heard, the probate court, in its
order of 2 October 1965, granted petitioner’s prayer and appointed her special administratrix of
the estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime of the deceased, and to
appoint another person as administrator or co-administrator at that stage of the proceeding would
only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate court an urgent
motion to require the Hongkong & Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965. The court denied this motion on 22 October 1965
for being premature, it being unaware that such deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio
Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the
immediate removal of the special administrartrix. It was their claim that the special
administratrix and her deceased husband, Alfonso Precilla,  had caused Gliceria A. del Rosario to
2

execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly
conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and
the improvements thereon located on Quiapo and San Nicolas, Manila, with a total assessed
value of P334,050.00. Oppositors contended that since it is the duty of the administrator to
protect and conserve the properties of the estate, and it may become necessary that an action for
the annulment of the deed of sale and for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso Precilla, the removal of the said
administratrix was imperative.

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

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria
A. del Rosario (Exhibit “D”). In declaring the due execution of the will, the probate court took
note that no evidence had been presented to establish that the testatrix was not of sound mind
when the will was executed; that the fact that she had prepared an earlier will did not prevent her
from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page does not render the latter invalid; that the
erasures and alterations in the instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which were noted by the
oppositors are even indicative of their truthfulness. The probate court, also considering that
petitioner had already shown capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and interested therein, appointed
said petitioner regular administratrix with a bond for P50,000.00. From this order all the
oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors’ motion of 14
December 1965 for the removal of the then special administratrix, as follows:
“It would seem that the main purpose of the motion to remove the special administratrix and to appoint
another one in her stead, is in order that an action may be filed against the special administratrix for the
annulment of the deed of sale executed by the decedent on January 10, 1961. Uiider existing documents,
the properties sold pursuant to the said deed of absolute sale no longer forms part of the estate. The
alleged conflict of interest is accordingly not between different claimants of the same estate. If it is
desired by the movants that an action be filed by them to annul the aforesaid deed of absolute sale, it is
not necessary that the special administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and difficulties in the settlement of the
estate. The movants may file the aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute sale even without leave of this court:”

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

On 15 December 1965, with that motion for removal pending in the court, the oppositors
requested the Register of Deeds of Manila to annotate a notice of lis pendens in the records of
TCT Nos. 81735, 81736, and 81737 the name of Alfonso Precilla. And when said official
refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles
contending that the matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon denial of this
motion on 12 November 1966, oppositors filed another mandamus action, this time againts the
probate court and the Register of Deeds. The case was decided and given due course in this
Court as G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the order
allowing the probate of the 1960 will.
 The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del
Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and
written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and
another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before
notary public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez
and Rosales uniformly declared that they were individually requested by Alfonso Precilla (the
late husband of petitioner special administratrix) to witness the execution of the last will of Doña
Gliceria A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga,
Manila one after the other, in the afternoon of 29 December 1960; that the testatrix at the time
was apparently of clear and sound mind, although she was being aided by Precilla when she
walked;  that the will, which was already prepared, was first read “silently” by the testatrix
3

herself before she signed it;  that the three witnesses thereafter signed the will in the presence of
4

the testatrix and the notary public and of one another. There is also testimony that after the
testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and
deed, the notary public asked for their respective residence certificates which were handed to
him by Alfonso Precilla, clipped together;  that after comparing them with the numbers already
5

written on the will, the notary public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal thereto,  They also testified that on that
6

occasion no pressure or influence has been exerted by any person upon the testatrix to execute
the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960
will are evident from the records. The will appeared to have been prepared by one who is not
conversant with the spelling of Tagalog words, and it has been shown that Alfonso Precilia is a
Cebuano who speaks Tagalog with a Visayan accent.  The witnesses to the will, two of whom are
7

fellow Visayans,  admitted their relationship or closeness to Precilla.  It was Precilla who
8 9

instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an
important document,  and who took their residence certificates from them a few days before the
10

will was signed,  Precilla had met the notary public and witnesses Rosales and Lopez at the door
11

of the residence of the old woman; he ushered them to the room at the second floor where the
signing of the document took place;  then he fetched witness Decena from the latter’s
12

haberdashery shop a few doors away and brought him to the house of the testatrix.  And when
13

the will was actually executed Precilla was present. 14

The oppositors-appellants in the present case, however, challenging the correctness of the
probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario
was so poor and defective that she could not have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and
illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified,
among other things, that when Doña Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens),  and that it was “above normal in
15

pressure”, denoting a possible glaucoma, a disease that leads to blindness.  As to the conditions
16

of her right eye, Dr. Tamesis declared:

“Q But is there anything here in the entry appearing in the

other documents Exhibits 3-B, 3-C and 3-D from which
you could inform the court as to the condition of the
vision of the patient as to the right eye?
“A Under date of August 30, 1960, is the record of refraction,
that is setting of glass by myself which showed that the
right eye with my prescription of glasses had a vision of
20 over 60 (20/60) and for the left eye with her correction
20 over 300 (20/300).
“Q In layman’s language. Doctor, what is the significance of
that notation that the right had a degree of 20 over 60
(20/60)?
“A It meant that that eye at least would be able to recognize
objects or persons at a minimum distance of twenty feet.
“Q But would that grade enable the patient to read print?
“A Apparently that is only a record for distance vision, for
distance sight, not for near.” (pages 20-21, t.s.n., hearing
of 23 March 1966)

The records also show that although Dr. Tamesis operated on the left eye of the decedent at the
Lourdes Hospital on 8 August 1960; as of 23 August 1960, in spite of the glasses her vision was
only “counting fingers,”  at five feet. The cross-examination of the doctor further elicited the
17

following responses:

“Q After she was discharged from the hospital you prescribed

lenses for her, or glasses?
“A After her discharge from the hospital, she was coming to

my clinic for
further
examination and
then sometime
later glasses were
prescribed.
  xxx       xxx      xxx      xxx
“Q And the glasses prescribed by you
enabled her to read, Doctor?
“A As far as my record is concerned, with
 the glasses for the left eye which I
prescribed—the eye which I operated—
she could see only forms but not read.
That is on the left eye.
“Q How about the right eye?
“A The same, although the vision on the
right eye is even better than the left eye.”
(pages 34, 35, t.s.n., hearing of 23 March
1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965
certifying that Gliceria del Rosario was provided with aphakic lenses and “had been under
medical supervision up to 1963 with apparently good vision”, the doctor had this to say:

“Q When you said that she had apparently good vision you
mean that she was able to read?
“A No, not necessarily, only able to go around, take care of
herself and see. This I can tell you, this report was made
on pure recollections and I recall she was using her
glasses although I recall also that we have to give her
medicines to improve her vision, some medicines to
improve her identification some more.
  xxx      xxx      xxx      xxx
“Q What about the vision in the right eye, was that corrected
by the glasses?
“A Yes, with the new prescription which I issued on 30
August 1960. It is in the clinical record.
“Q The vision in the right eye was corrected?
“A Yes. That is the vision for distant objects.” (pages 38, 39,
40, ts.n., hearing of 23 March 1966).

That is the vision for distant objects.” (pages 38, 39, 40, ts.n., hearing of 23 March 1966). The
foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first
hand knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for
viewing distant objects and not for reading print. Thus, the conclusion is inescapable that with the
condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December
1960, Gliceria del Rosario was incapable of reading, and could not have read the provisions of the will
supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated
that she read the instrument “silently” (t.s.n., pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the
will, Exhibit “D”, acquires striking significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a single sheet of paper, so
much so that the words had to be written very close to the top, bottom and two sides of the paper,
leaving no margin whatsoever; the word “and” had to be written by the symbol “&”, apparently
to save on space. Plainly, the testament was not prepared with any regard for the defective vision
of Doña Gliceria. Further, typographical errors like “HULINH” for “HULING” (last), “Alfonsa”
for “Alfonso”, “MERCRDRS” for MERCEDES”, “instrumental” for “Instrumental”, and
“acknowledged” for “acknowledge”, remained unconnected, thereby indicating that execution
thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one’s worldly possessions should be embodied in an
informal and untidily written instrument; or that the glaring spelling errors should have ‘escaped
her notice if she had actually retained the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could not have physically read or understood
the alleged testament, Exhibit “D”, and that its admission to probate was erroneous and should
be reversed.
That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and
attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit “D”, as
appears from the photographs, Exhibits “E” to “E-l”, in no way proves fchat she was able to read
a closely typed page, since the acts shown do not require vision at close range. It must be
remembered that with the natural lenses removed, her eyes had lost the power of adjustment to
near vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the
signing of checks (Exhibits “G” to “G-3”) by her indicative of ability to see at normal reading
distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so
that, one need only to have a rough indication of the place where the signature is to be affixed in
order to be able to write it. Indeed, a close examination of the checks, amplified in the
photograph, Exhibit “O”, et seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading dis-, tance: the signatures in the checks are written far above the
printed base, lines, and the names of the payees as well as the amounts written do not appear to
be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand than
hers.

Thus, for all intents and purposes of the rules on probate, the deceased Gliceria del Rosario
was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her
will would have required observance of the provisions of Article 808 of the Civil Code.

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

The rationale behind the requirement of reading the will to the testator if he is blind or incapable
of reading the will himself (as when he is illiterate),  is to make the provisions thereof known to
18

him, so that he may be able to object if they are not in accordance with his wishes. That the aim
of the law is to insure that the dispositions of the will are properly communicated to and
understood by the handicapped testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to the latter, not only once but twice,
by two different persons, and that the witnesses have to act within the range of his (the testator’s)
other senses.19
 In connection with the will here in question, there is nothing in the records to show that the
above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be
probated suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against the denial by
the probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as
special administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615,
Annex “B”).

The oppositors’ petition was based allegedly on the existence in the special administratrix of
an interest adverse to that of the estate. It was their contention that through fraud her husband
had caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961,
by virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to
Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon,
assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex “P”,
Petition) reasoned out that since the properties were already sold no longer form part of the
estate. The conflict of interest would not be between the estate and third parties, but among the
different claimants of said properties, in which case, according to the court, the participation of
the special administratrix in the action for annulment that may be brought would not be
necessary.

The error in this line of reasoning lies in the fact that what was being questioned was
precisely the validity of the conveyance or sale of the properties. In short, if proper, the action for
annulment would have to be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased.  For the rule is that only where there is
20

no special proceeding for the settlement of the estate of the deceased may the legal heirs
commence an action arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of
sale, an ordinary and separate action would have to be instituted, the matter not falling within the
competence of the probate court.  Considering the facts then before it, i.e., the alleged deed of
22

sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already
practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for
properties with a total assessed value of P334,05.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to belong to the estate.  Not only this,
22a

but the conduct of the special administratrix in securing new copies of the owner’s duplicates of
TCT Nos. 66201, 66202, and 66204, without the court’s knowledge or authority, and on the
pretext that she needed them in the preparation of the inventory of the estate, when she must
have already known by then that the properties covered therein were already “conveyed” to her
husband by the deceased, being the latter’s successor, and having the contract bind the land
through issuance of new titles in her husband’s name cannot but expose her to the charge of
unfitness or unsuitableness to discharge the trust, justifying her removal from the administration
of the estate.
 With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the
Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.

The probate court pointed out in its order of 22 October 1965 (Annex “H”) that it could not
have taken action on the complaint against the alleged withdrawals from the bank deposits of the
deceased, because as of that time the court had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in her pleading of 30 October 1965, the
withdrawals referred to by the oppositors could be those covered by checks issued in the name of
Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the petitioners-oppositors, negates any
charge of grave abuse in connection with the issuance of the order here in question.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are
clear: notice of the pendency of an action may be recorded in the office of the register of deeds
of the province in which the property is situated, if the action affects “the title or the right of
possession of (such) real property.”  In the case at bar, the pending action which oppositors seek
23

to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding
filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that
case is concerned merely with the correctness of the denial by the probate court of the motion for
the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the
late Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness
of said special administratrix to continue holding the trust; it does not involve or affect at all the
title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737.
Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated in
the record of the titles to the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the
alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R.
No. L-26615 being meritorious, the appealed order is set aside and the court below is ordered to
remove the administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs
intestate of the deceased Doña Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her
to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.
G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA

CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate
of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation of that last will.  It was declared therein, among other
1

things, that the testator was leaving by way of legacies and devises his real and personal properties
to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera
and Marcosa Alcantara, all of whom do not appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the petition for hearing on August 20,
1979 but the same and subsequent scheduled hearings were postponed for one reason to another.
On May 29, 1980, the testator passed away before his petition could finally be heard by the probate
court.  On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his
3

appointment as special administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the appointment of a special administrator for his
estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the alleged date
of its execution, the testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to the genuineness of the
signature of the testator therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty.
Filoteo Manigos, testified that the testator executed the will in question in their presence while he
was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo
Caballero was in good health and was not unduly influenced in any way in the execution of his will.
Labuca also testified that he and the other witnesses attested and signed the will in the presence of
the testator and of each other. The other two attesting witnesses were not presented in the probate
hearing as the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will
and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot

overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who
clearly told the Court that indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December 5, 1978. Moreover, the fact that it
was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their
avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of the
law.9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and void for
the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision   affirming that of the trial court,
10

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

To our thinking, this is sufficient compliance and no evidence need be presented to

indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of
the law would have it that the testator signed the will "in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another." If not completely or
ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law."  11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was
denied in the latter's resolution of January 14, 1992,   hence this appeal now before us. Petitioners
12

assert that respondent court has ruled upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning once more, on the same ground as that
raised before respondent court, the validity of the attestation clause in the last will of Mateo
Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death.   Under the Civil Code, there are two kinds of wills which a testator may execute.  the first
13 14

kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:

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

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

The attestation should state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
 If the attestation clause is in a language not known to the witness, it shall be
interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the
attesting witness.   hence it is likewise known as notarial will. Where the attestator is deaf or deaf-
15

mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is
acknowledged.  16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the testator.  17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses.   The last paragraph of Article 805 merely requires that, in such a case, the
18

attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify
that the instrument has been executed before them and to the manner of the execution the
same.   It is a separate memorandum or record of the facts surrounding the conduct of execution
19

and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed.   It is made for the purpose of preserving in a
20

permanent form a record of the facts that attended the execution of a particular will, so that in case
of failure of the memory of the attesting witnesses, or other casualty, such facts may still be
proved.  21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will,   should state (1) the number of the pages used upon which the will is
22

written; (2) that the testator signed, or expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the
signing by the testator of the will and all its pages, and that said witnesses also signed the will and
every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages;  whereas the subscription of the signature of the
23

testator and the attesting witnesses is made for the purpose of authentication and identification, and
thus indicates that the will is the very same instrument executed by the testator and attested to by
the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of
the will as embodied in the attestation clause.  The attestation clause, therefore, provide strong legal
25

guaranties for the due execution of a will and to insure the authenticity thereof.  As it appertains only
26

to the witnesses and not to the testator, it need be signed only by them.  Where it is left unsigned, it
27

would result in the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following manner:

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

This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. . . .
29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the three attesting
witnesses hereto.  Since it is the proverbial bone of contention, we reproduce it again for facility of
30

reference:

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

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

In Taboada vs. Rizal,  we clarified that attestation consists in witnessing the testator's execution of
32

the will in order to see and take note mentally that those things are done which the statute requires
for the execution of a will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it involves a mental
act, there would be no means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other.

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

It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:

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

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes  regarding Article 809, wherein
34

he urged caution in the application of the substantial compliance rule therein, is correct and should
be applied in the case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings.
(Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of
each other.  In such a situation, the defect is not only in the form or language of the attestation
35

clause but the total absence of a specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation clause statement, or
an implication thereof, that the attesting witness did actually bear witness to the signing by the
testator of the will and all of its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied
by the text of the will or a consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the
will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan,  where it was held that the object of the solemnities surrounding the
36

execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized
that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation already given assures such ends,
any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent
cases of Avera vs. Garcia,  Aldaba vs. Roque,  Unson vs. Abella,  Pecson vs. Coronel,  Fernandez
37 38 39 40

vs. Vergel de Dios, et al.,  and Nayve vs. Mojal, et al.  all adhered to this position.
41 42
The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of Saguinsin,  In re Will of
43

Andrada,  Uy Coque vs. Sioca,  In re Estate of Neumark,   and Sano vs. Quintana.
44 45 46 47

Gumban vs. Gorecho, et al.,  provided the Court with the occasion to clarify the seemingly conflicting
48

decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to
state that the witnesses signed the will and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellants

rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43
Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be

mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions
of the law.
 The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata,  Rodriguez vs. Alcala,  Enchevarria vs. Sarmiento,  and Testate Estate of
49 50 51

Toray  went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,  Rey vs.
52 53

Cartagena,  De Ticson vs. De Gorostiza,  Sebastian vs. Panganiban,  Rodriguez vs. Yap,  Grey vs.
54 55 56 57

Fabia,  Leynez vs. Leynez,  Martir vs. Martir,  Alcala vs. De Villa,  Sabado vs.
58 59 60 61

Fernandez,  Mendoza vs. Pilapil,   and Lopez vs. Liboro,  veered away from the strict interpretation
62 63 64

rule and established a trend toward an application of the liberal view.

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

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in disposing of his
property.

However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
 amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein 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
829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,  "does not offer any puzzle or difficulty,
66

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

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.
67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS
its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of
the said decedent.

SO ORDERED.
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.
G.R. Nos. 83843-44               April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.

SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS,   GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
1

appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador
is dated, as provided for in Article 810  of the New Civil Code.
2

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs),
and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus
and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by
T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly
had already acquired by devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised
on the fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants
in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the
redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified
said joint decision of the court a quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence,
this petition.

Petitioners now assign the following errors committed by respondent court, to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE

PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and

II

THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I — First Page

This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known place
as Tagale.

And this place that is given as the share to him, there is a measurement of more or less one
hectare, and the boundary at the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as
it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR,
who likewise is also their brother. That because it is now the time for me being now ninety
three (93) years, then I feel it is the right time for me to partition the fishponds which were
and had been bought or acquired by us, meaning with their two mothers, hence there shall
be no differences among themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering to each and everyone of them
the said portion and assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.

II — Second Page

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day,
 in the year 1968, and this decision and or instruction of mine is the matter to be followed.
And the one who made this writing is no other than MELECIO LABRADOR, their father.

Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;

And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so
need, in order that there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.

III — THIRD PAGE

And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be equal
portion of each share among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am
signing my signature below hereof, and that this is what should be complied with, by all the
brothers and sisters, the children of their two mothers — JULIANA QUINTERO PILARISA
and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with Article 810.  It1âwphi1

is worthy of note to quote the first paragraph of the second page of the holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day,
in the year 1968, and this decision and or instruction of mine is the matter to be followed.
And the one who made this writing is no other than MELECIO LABRADOR, their father.
(emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the date of execution of the holographic
will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "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."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the
will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he
was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).

SO ORDERED.