CASE DIGESTS - SUCCESSION 9.
Macasaet vs Macasaet their contention that one lot had been allotted as an
8. Lee vs RTC of Quezon City (GR No. 146006, February
23, 2004)
FACTS: Philinterlife shares of stock were part of the estate
of Dr. Juvencio Ortañez from the very start as in fact these
shares were included in the inventory of the properties of the
estate submitted by Rafael Ortañez after he and his brother,
Jose Ortañez, were appointed special administrators by the
intestate court. The controversy here actually started when,
during the pendency of the settlement of the estate of Dr.
Ortañez, his wife Juliana Ortañez sold the 1,014 Philinterlife
shares of stock in favor of petitioner FLAG without the
approval of the intestate court. Her son Jose Ortañez later
sold the remaining 1,011 Philinterlife shares also in favor of
FLAG without the approval of the intestate court.
ISSUE: Whether or not sale of property included in the
inventory of the estate by some of the heirs made during the
pendency of the intestate proceeding without intestate
court’s approval may be declared null and void.
HELD: YES. The rule is clear that (1) any disposition of
estate property by an administrator or prospective heir
pending final adjudication requires court approval and (2)
any unauthorized disposition of estate property can be
annulled by the probate court, there being no need for a
separate action to annul the unauthorized disposition.
Moreover, the intestate court has the power to execute its
order with regard to the nullity of an unauthorized sale of
estate property, otherwise its power to annul the
unauthorized or fraudulent disposition of estate property
would be meaningless. In other words, enforcement is a
necessary adjunct of the intestate or probate court’s power
to annul unauthorized or fraudulent transactions to prevent
the dissipation of estate property before final adjudication.
(GR Nos. 154391-92, September 30, 2004) Atup
G.R. Nos. 154391-92
September 30, 2004
Spouses ISMAEL and TERESITA MACASAET Vs.
Spouses VICENTE and ROSARIO MACASAET
Facts: Petitioners Ismael and Teresita Macasaet and
Respondents Vicente and Rosario Macasaet are first-
degree relatives. Ismael is the son of respondents, and
Teresita is his wife.
On December 10, 1997, the parents filed with the (MTCC)
of Lipa City an ejectment suit against the children.
Respondents alleged that they were the owners of (2)
parcels of land situated at Banay-banay, Lipa City; that by
way of a verbal lease agreement, Ismael and Teresita
occupied these lots and used them as their residence and
the situs of their construction business; and that despite
repeated demands, petitioners failed to pay the agreed
rental of ₱500 per week.8
Ismael and Teresita(petitioners) denied the existence of
any verbal lease agreement. They claimed that
respondents had invited them to construct their residence
and business on the subject lots in order that they could all
live near one other, employ Marivic (the sister of Ismael),
and help in resolving the problems of the family.They
added that it was the policy of respondents to allot the land
they owned as an advance grant of inheritance in favor of
their children. Thus, they contended that the lot(one of the
two lots) had been allotted to Ismael as advance
inheritance. On the other hand, the other lot covered by
was allegedly given to petitioners as payment for
construction materials used in the renovation of
respondents’ house.
The MTCC ruled in favor of respondents and ordered
petitioners to vacate the premises. The MTCC dismissed
advance inheritance, on the ground that successional rights
were inchoate. Moreover, it disbelieved petitioners’
allegation that the other parcel had been given as payment
for construction materials.14
On appeal, the regional trial court (RTC) upheld the findings
of the MTCC.
Issue: Whether or not petitioners have the right to possess
the lot as “advance inheritance”.
Held: NO. Petitioners have not given the Court adequate
reasons to reverse the lower courts’ dismissal of their
contention that the lots were allegedly allotted to them as
part of their inheritance and given in consideration for past
debts.
The right of petitioners to inherit from their parents is
merely inchoate and is vested only upon the latters’
demise. Indisputably, rights of succession are transmitted
only from the moment of death of the decedent. Assuming
that there was an "allotment" of inheritance, ownership
nonetheless remained with respondents(parents).
Moreover, an intention to confer title to certain persons in
the future is not inconsistent with the owners’ taking back
possession in the meantime for any reason deemed
sufficient. Other than their self-serving testimonies and their
affidavits, petitioners offered no credible evidence to
support their outlandish claim of inheritance "allocation."
B. Testamentary Succession
1. Dizon-Rivera vs Dizon (GR No. L-24561, June 30,
1970) Banggat
Marina Dizon-Rivera v Dizon, et al.
GR L-24561| June 30, 1970 | Teehankee
Art. 791
FACTS: Agripina died and she left a will. Agripina Valdez
died and was survived by 7 compulsory heirs (6 legitimate
children & 1 legitimate grandchild as heir of a pre-
deceased legitimate child). She left a will written in
Pampango dialect. The real and personal properties of the
testatrix had a total appraised value of P1,811,695.00
(formerly P1,801,960.00). Testate proceedings: will be
admitted to probate. Testate proceedings were in due
course commenced and the last will and testament was
allowed and admitted to probate. One of the compulsory
heirs, Marina Dizon-Rivera was appointed executrix of the
testatrix' estate. The legitime of each of the 7 compulsory
heirs amounted to P129,362.11. (1/7 of the half of the
estate reserved for the legitime of legitimate children and
descendants).
1. Agripina’s will
In her will, the testatrix "commanded that her property be
divided" in accordance with her testamentary disposition,
whereby she devised and bequeathed specific real
properties comprising practically the entire bulk of her estate
among her 6 children and 8 grandchildren as follows:
Estela 98k
Angelina 106k
Bernardita 51k
Josefina 52k
Tomas 131k
Lilia 72k
Marina 1.1M
Pablo 69k
8 grandchildren 72k
Take note: Marina and Tomas were given more than their
respective legitimes, while the rest received less than their
respective legitimes.
2. Marina’s project of partition
Marina submitted a project of partition, adjudicating the
properties given them in the will, plus cash and/or properties
to complete the respective legitimes to P129,254.96 of those
given less while Tomas and Marina must pay in cash or
property an amount necessary to complete the prejudiced
legitimes.
3. Other heirs COUNTER-PROJECT OF PARTITION
The oppositors, who were the other 6 compulsory heirs
(including Tomas), submitted their counter-project of
partition where they proposed the reduction of all
testamentary dispositions proportionately to the value of 1⁄2
of the entire estate corresponding to the free portion, and the
other half to be divided among the 7 compulsory heirs as
constituting their legitimes. This is their proposal:
First ½= divided according to 1/7 share as legitime
Second ½
Estela 49k
Angelina 53k
Bernardita 26k
Josefina 26k
Tomas 65k
Lilia 36k
Marina 576k
Pablo 34k
8 grandchildren 36k
Lower Court approved Marina’s project of partition This is
practical and valid solution.
Basis: Arts. 906 and 907 of NCC provides that when the
legitime is impaired or prejudiced, the same shall be
completed and satisfied.
Although both projects of partition tried to adhere to this, the
Counter-project of partition will substantially result in a
distribution intestacy, which is in controversion of Art. 791
adding that “the testratix has chosen to favor certain heirs in
her will for reasons of her own, cannot be doubted”.
ISSUE: Whether the testamentary dispositions in the will are
in the nature of devises imputable to the free portion of the
estate and therefore subject to reduction?
HELD: The testamentary disposition made by Agripina was
in the nature of partition of her estate by will.
Articles 788 and 791
"If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which
the disposition is to be operative shall be preferred" and "The
words of a will are to receive an interpretation which will give
to every expression some effect, rather than one which will
render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent
intestacy."
Testator’s wish = fixed law
The testator's wishes and intention constitute the first and
principal law in the matter of testaments. When expressed
clearly and precisely in his last will amount to the only law
whose mandate must imperatively be faithfully obeyed and
complied with by his executors, heirs and devisees and
legatees, and neither these interested parties nor the courts
may substitute their own criterion for the testator's will.
Agripina’s will "it is my wish and I command that my property
be divided” in accordance with the disposition immediately
thereafter following. This was a valid partitionof her estate
subject only to the legitimes. This is contemplated and
authorized par. 1 of Art. 1080:"(S)hould a person make a
partition of his estate by an act inter vivos or by will, such
partition shall be respected, insofar as it does not prejudice
the legitime of the compulsory heirs."
Safeguard to the right of such compulsory heirs:
ART. 906. Any compulsory heir to whom the testator has left
by any title less than the legitime belonging to him may
demand that the same be fully satisfied.
ART. 907. Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or
excessive.
The counter-project of partition amounts to distribution by
intestacy! It nullifies the will, WHICH IS WRONG!
The counter-project of partition would reduce the
testamentary partition made by Agripina to one-half and limit
the same, which they would consider as mere devises or
legacies, to one-half of the estate as the disposable free
portion, and apply the other half of the estate to payment of
the legitimes of the seven compulsory heirs. Oppositors'
proposal would amount substantially to a distribution by
intestacy and pro tanto nullify the testatrix' will, contrary to
Art. 791 and Art. 1091: "(A) partition legally made confers
upon each heir the exclusive ownership of the property
adjudicated to him.
Oppositors argument: “I bequeath”= devises
The testamentary dispositions in their favor are in the nature
of devises of real property, citing the testatrix' repeated use
of the words "I bequeath" in her assignment or distribution of
her real properties to the respective heirs.
SC: They are NOT devises!
This cannot be considered devises: for it clearly appear from
the whole context of the will and the disposition by the
testatrix of her whole estate that her clear intention was to
partition her whole estate through her will.
"I bequeath" acquire no legal significance,
Agripina’s intent were by way of adjudications to the
beneficiaries as heirs and not as mere devisees.
Dispositions should not be taken only from the free portion.
The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to be
taken only from the free portion of the estate, as contended,
for the par. 2 of Art. 842 precisely provides that "(O)ne who
has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard
to the legitime of said heirs."
Annex:
Oppositors argue that: the purchasing value of the Philippine
peso has greatly declined since the testatrix' death in
January, 1961
SC: no legal basis or justification for overturning the wishes
and intent of the testatrix
Oppositors right was merely to demand completion of their
legitime under Article 906.
Neither may the appellants legally insist on their legitime
being completed with real properties of the estate instead of
being paid in cash, per the approved project of partition. The
transmission of rights to the succession are transmitted from
the moment of death of the decedent (Article 777, Civil
Code) and accordingly, the value thereof must be reckoned
as of then, as otherwise, estates would never be settled if
there were to be a revaluation with every subsequent
fluctuation in the values of the currency and properties of the
estate.
That her co-oppositors would receive their cash differentials
only now when the value of the currency has declined
further, whereas they could have received them earlier, like
Bernardita, at the time of approval of the project of partition
and when the peso's purchasing value was higher, is due to
their own decision of pursuing the present appeal.
2. Solla vs Ascueta (GR No. 24955, September 4,
1926) Cambe
FACTS
Maria Solla died leaving a will in accordance with the laws
then in force but was not probated. Maria then instituted
grandson Leandro Serrano as universal heir, with the
obligation that the latter shall “give or deliver to the parish
priest of this town a sufficient sum of money necessary for a
yearly novena” and shall “insist that his heirs comply with the
same”. The Trial Court ruled that the order mentioned by
Maria Solla that Leandro shall “insist that his heirs comply
with the same” pertains to both the distribution of the
legacies and the pious bequests.
ISSUE
Whether or not the phrase “insist that his heirs comply with
the same” pertains to both the distribution of the legacies and
the pious bequests.
RULING
NO. In order to determine the testator’s intention, the court
should place itself as near as possible in his position, and
hence, where the language of the will is ambiguous or
doubtful, should take into consideration the situation of the
testator and the facts and circumstances surrounding him at
the time the will executed. In the present case, it appearing
that it was Mari Solla’s intention, in ordering her universal
heir Leandro Serrano in her will at the hour of his death, to
insist upon the compliance of her orders by his heirs, that the
latter should comply with her pious orders and that she did
not mean her orders concerning her legacies.
3. In re Estate of Maria Calderon vs Lucas Eugenio (GR
No. L-7856, December 26, 1913) De Gala
In re Estate of Maria Calderon vs Lucas Eugenio
(GR No. L-7856, December 26, 1913)
Facts / Issue:
The question involved in these proceedings are
those as to how and in what manner the provisions made by
the testator, the deceased Miguel Fabie, in clause 12 of his
will, should be complied with. In addition, as to who are the
legatees that should receive pro rata the legacy specified in
the said clause, a literal copy of which is as follows:
Clause 12. I declare it to be my will that my
property on Calle Anloague, No. 173,
mentioned under the letters C and H in the
third clause of this my testament, in order
that as a legacy of mine to my wife, under
the condition that, with its net revenue, she
shall care for, educate and assist, during her
widowhood, the children of our servants and
the two children of D. Lucas y Eugenio who
are also in this house in the character of
proteges, named Filomena and Joaquin,
minors and orphans by loss of their mother;
and I authorize and charge my wife to
provide in her will that she may make
after my death, that her testamentary
executors shall deliver this aforesaid
property on Calle Anloague, as an
inheritance from her, to the person or
persons who may have assisted and
cared for her during her widowhood until
her death. If the persons who may have
served he should be from different families,
I charge her testamentary executors, in
order to avoid disagreements among such
persons, publicly or privately to sell the said
property on Calle Anloague immediately
after her death and to divide in equal shares
the net proceeds derived thereby. If through
involuntary negligence my wife and legatee
should be unable to make a will after my
death, or if for any other cause she should
not fulfill the charge I impose upon her in
this twelfth clause, it is my will that it be
complied with and fulfilled by my brother,
Ramon Fabie, or, in his default, by his heirs,
his sons named Serafin and Jose surnamed
Fabie.
Based on the evidence presented during
the trial, those entitled thereto are Encarnacion
Gutierrez Calderon, Filomena Calderon, Potenciana
de la Cruz, Basilisa Salteras, Candida Reyes,
Benita Garcia, Maria and Josefa Calderon, and
Petronila Eugenio. The Trial Court ruled favorably
except with respect to the little girls Maria and
Josefa Calderon, who were considered too young
to have been able to serve the widow Maria Cristina
Calderon.
Ruling:
Article 675 of the Civil Code prescribes as follows
with regard to the interpretation of wills:
Every testamentary provision shall be
understood in the literal meaning of its word,
unless it clearly appears that the will of the
testator was different. In case of doubt, that
which appears most in accordance with the
intention of the testator, according to the
tenor of the same will, shall be
observed.lawphil.net
A testator cannot prohibit the contest of his
will in the cases in which there exists nullity
specified by law.
In the preinserted clause of the said will of the
deceased Fabie it appears explicitly ordered by the testator
that, after the death of his wife Maria Cristina Calderon, the
legatee of the usufruct of the property situated at No. 173
Calle Anloague, now Juan Luna, should be delivered to the
person or persons who may have served and cared for his
aforementioned wife during her widowhood until her death.
The testator's will, as recorded in the above clause
12, is so clear and definite that, in order duly to comply
therewith, it needs but be determined who are the persons
that must be considered as the legatees on account of their
having served and cared for the testator's widow until her
death.
The record shows that minors Maria and Josefa
Calderon, as the widow's protegees, lived in her house until
her death and, sometimes accompany her, even when she
went to church, and that, although they were minors, they
could have rendered the widow assistance and services
sufficient and proportionate to their respective ages. The
Supreme Court ruled that from the testator's intention as
expressed in his will, it is undeniable that the assistance and
services rendered to the widow, required as a condition for
meriting the legacy in question, were sufficient to the needs
and conveniences of the testator's widow. The company of
obliging and obedient little girls is usually more agreeable
and useful to elderly and sick persons than that of adults.
4. Balanay, Jr. vs Martinez (GR No. L-39247, June 27,
1975) Delute
Facts:
Leodegaria Julian, a native of Sta. Maria, Ilocos
Sur, died on February 12, 1973 in Davao City at the age of
67. She was survived by her husband, Felix Balanay, Sr.,
and 6 legitimate children: Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B.
Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court for the
probate of his mother's notarial will dated September 5,
1970 which is written in English where Leodegaria Julian
declared (a) she was the owner of the "southern half of 9
conjugal lots (b) she was the absolute owner of 2 parcels of
land which she inherited from her father (c) it was her
desire that her properties should NOT be divided among
her heirs during her husband's lifetime and that their
legitimes should be satisfied out of the fruits of her
properties (d) after her husband's death (age of 82 in 1973)
her paraphernal lands and all the conjugal lands should be
divided and distributed in the manner set forth in that part
of her will. She devised and partitioned the conjugal lands
as if they were all owned by her.
Although initially opposing, Felix Balanay, Sr.
signed a Conformation of Division and Renunciation of
Hereditary Rights manifesting that out of respect for his
wife's will he waived and renounced his hereditary rights in
her estate in favor of their 6 children. In that same
instrument he confirmed the agreement, which he and his
wife had perfected before her death, that their conjugal
properties would be partitioned in the manner indicated in
her will.
Avelina B. Antonio, an oppositor, in her rejoinder
contended that the affidavit and conformation" of Felix
Balanay, Sr. were void for illegally claiming the conjugal
lands.
David O. Montaña, Sr., claiming to be the lawyer of
Felix Balanay, Jr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon filed a motion for leave
of court to withdraw probate of the will and requesting
authority to proceed by intestate estate proceeding also
referring to the provisions relating to the conjugal assets as
compromising the future legitimes.
Lower Court: adopted that the Will was void and
dismissed the petition for the probate, converted the testate
proceeding into an intestate proceeding.
Felix Balanay, Jr., through a new counsel, Roberto
M. Sarenas, asked for the reconsideration of the lower
court's order on the ground that Atty. Montaña had NO
authority to withdraw the petition for the allowance of the
will.
Lower Court on motion for reconsideration: Denied
and clarified that it declared the will void on the basis of its
own independent assessment of its provisions and not
because of Atty. Montaña's arguments.
Issue: whether the probate court erred in passing upon
the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
Ruling:
The probate court erred in declaring, in its order of
February 28, 1974 that the will was void and in converting
the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 ,
it gave effect to the surviving husband's conformity to the
will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the
first invalid disposition had not been made" . "Where some
of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the
invalid without defeating the intention of the testator or
interfering with the general testamentary scheme, or doing
injustice to the beneficiaries".
The statement of the testatrix that she owned the "southern
half of the conjugal lands is contrary to law because,
although she was a coowner thereof, her share was
inchoate and proindiviso (Art. 143, Civil Code; Madrigal and
Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But
That illegal declaration does not nullify the entire will. It may
be disregarded.
The provision of the will that the properties of the testatrix
should not be divided among her heirs during her
husband's lifetime but should be kept intact and that the
legitimes should be paid in cash is contrary to article 1080
of the Civil Code which reads:
ART. 1080. Should a person make a
partition of his estate by an act inter vivos,
or by will, such partition shall be respected,
insofar as it does not prejudice the legitime
of the compulsory heirs.
A parent who, in the interest of his or her
family, to keep any agricultural, industrial,
 or manufacturing enterprise intact, may
avail himself of the right granted him in this
article, by ordering that the legitime of the
other children to whom the property is not
assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire
conjugal estate among her six children (her husband had
renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more
children as envisaged in article 1080. Hence, she had no
right to require that the legitimes be paid in cash. On the
other hand, her estate may remain undivided only for a
period of twenty years. So, the provision that the estate
should not be divided during her husband's lifetime would
at most be effective only for twenty years from the date of
her death unless there are compelling reasons for
terminating the coownership (Art. 1083, Civil Code).
It should be stressed that by reason of the surviving
husband's conformity to his wife's will and his renunciation
of his hereditary rights, his one-half conjugal share became
a part of his deceased wife's estate. His conformity had the
effect of validating the partition made in paragraph V of the
will without prejudice, of course, to the rights of the
creditors and the legitimes of the compulsory heirs.
5. Enriquez vs Abadia (GR No. L-7188, August 9,
1954) Galagala
CASE NO.5
In re: Will and Testament of the deceased REVEREND
SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ,
ET AL., Petitioners-Appellees, v. MIGUEL ABADIA, ET
AL., Oppositors-Appellants.
Facts:
On September 6, 1923, Father Sancho Abadia, parish priest
of Talisay, Cebu, executed a document purporting to be his
Last Will and Testament now marked Exhibit "A." Resident
of the City of Cebu, he died on January 14, 1943, in the
municipality of Aloguinsan, Cebu, where he was an evacue.
He left properties estimated at P8,000 in value. One Andres
Enriquez, one of the legatees in Exhibit "A", filed a petition
for its probate in the Court of First Instance of Cebu. Some
cousins and nephews who would inherit the estate of the
deceased if he left no will, filed opposition.
One of the attesting witnesses, testified without contradiction
that in his presence and in the presence of his co-witnesses,
Father Sancho wrote out in longhand Exhibit "A" in Spanish
which the testator spoke and understood; that he (testator)
signed on he left hand margin of the front page of each of
the three folios or sheets of which the document is
composed, and numbered the same with Arabic numerals,
and finally signed his name at the end of his writing at the
last page, all this, in the presence of the three attesting
witnesses after telling that it was his last will and that the said
three witnesses signed their names on the last page after
the attestation clause in his presence and in the presence of
each other.
The Trial court in its findings declared that the said will is a
holographic will, that the same is in the handwriting of the
testator and such was not allowed by law both at the time of
its execution and at the testator’s death. Although such fact
was already known, the trial court went on and decided to
grant the probate of the will on grounds that the new civil
code was already in force and that it recognized the validity
of such will under a liberal view and to carry on the intention
of the testator which is the controlling factor and may
override defect in form.
Issue:
Whether or not the holographic will is valid?
Ruling: NO.
The validity of a will as to its form depends upon the
observance of the law in force at the time it is made." The
above provision is but an expression or statement of the
weight of authority to the effect that the validity of a will is to
be judged not by the law inforce at the time of the testator’s
death or at the time the supposed will is presented in court
for probate or when the petition is decided by the court but
at the time the instrument was executed. One reason in
support of the rule is that although the will operates upon and
after the death of the testator, the wishes of the testator
about the disposition of his estate among his heirs and
among the legatees is given solemn expression at the time
the will is executed, and in reality, the legacy or bequest then
becomes a completed act.
However, we should not forget that from the day of the death
of the testator, if he leaves a will, the title of the legatees and
devisees under it becomes a vested right, protected under
the due process clause of the constitution against a
subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate
such a will. By parity of reasoning, when one executes a will
which is invalid for failure to observe and follow the legal
requirements at the time of its execution then upon his death
6. Bugnao vs Ubag (GR No. 4445, September 18, 1909)
Gonzales
CATALINA BUGNAO, proponent-appellee,
vs.FRANCISCO UBAG, ET AL., contestants-appellants.
G.R. No. 4445 September 18, 1909
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
FACTS:
Domingo Ubag’s last will and testament was admitted to
probate as contested by his brothers and sisters led by
Fransisco Ubag. The challenged WILL stated that Catalina
Bugnao, the testator’s wife, was designated as his sole
beneficiary, leaving nothing to his siblings who are entitled
to share in the distribution of his estate since he left no heirs
in the direct ascending and descending line.
Appellee submitted that said instrument was signed by the
testator in the presence of three subscribing and attesting
witnesses, and appears upon its face to have been duly
executed in accordance with the provisions of the Code of
Civil Procedure. Two of the subscribing witnesses, Victor J.
Bingtoy and Catalino Marino, testified in support of the will,
the latter being the justice of the peace of the municipality
wherein it was executed; and their testimony was
corroborated in all important details by the testimony of one
of the proponent herself, who was present when the will was
made. The subscribing witnesses gave full and detailed
accounts of the execution of the will and swore that the
testator, at the time of its execution, was of sound mind and
memory, and in their presence attached his signature
thereto as his last will and testament, and that in his
presence and in the presence of each other, they as well as
the third subscribing witness.
Appellants alleged that Ubag, being physically and mentally
incapable due to his sickness, was not of sound mind and
memory when he signed the said instrument. Thus, it was
not executed in conformity with the manner and form
prescribed under Section 618 of the Code of Civil
Procedure. They also questioned the credibility of the said
witnesses, alleging that both had different manifestations as
to the signing of the will. One saying that the testator sat up
in bed, then signed his name, and then was fed by his wife;
while the other stating that he was assisted into a sitting
position, was given something to eat before he signed his
name. In proving the incapacity of the testator, they
presented four witnesses who were allegedly saw the
execution of the will. Among them, two were not present at
the time the will was executed and two others were the
appellant himself and his close relative.
Also, a genuine authentic signature of the deceased was
introduced as evidence for comparison with the signature
attached to the will. No expert witness was called to confirm
the veracity of the said signatures.
ISSUE:
W/O the effect of old age, infirmity or disease
establishes the lack of testamentary capacity of the
testator for being unsound mind, thus, rendering,
rendering the said instrument invalid?
HELD:
No. The testator was mentally capable of making the will is
in our opinion fully established by the testimony of the
subscribing witnesses who swore positively that, at the time
of its execution, he was of sound mind and memory.
Counsel for appellant suggests that the fact that the alleged
will leaves all the property of the testator to his widow, and
wholly fails to make any provision for his brothers or sisters,
indicates a lack of testamentary capacity and undue
influence; and because of the inherent improbability that a
man would make so unnatural and unreasonable a will, they
contend that this fact indirectly corroborates their contention
that the deceased never did in fact execute the will. But when
it is considered that the deceased at the time of his death
had no heirs in the ascending or descending line; that a bitter
family quarrel had long separated him from his brothers and
sisters, who declined to have any relations with the testator
because he and his wife were adherents of the Aglipayano
Church; and that this quarrel was so bitter that none of his
brothers or sisters, although some of them lived in the
vicinity, were present at the time of his death or attended his
funeral; Here the Court thinks the fact that the deceased
desired to leave and did leave all of his property to his widow
and made no provision for his brothers and sisters, who
themselves were grown men and women, by no means
tends to disclose either an unsound mind or the presence of
undue influence on the part of his wife, or in any wise
corroborates contestants' allegation that the will never was
executed.
Testamentary capacity is the capacity to comprehend the
nature of the transaction which the testator is engaged at the
time, to recollect the property to be disposed of and the
person who would naturally be supposed to have claims
upon the testator, and to comprehend the manner in which
the instrument will distribute his property among the objects
of his bounty.
Hence, he requisites for one to be able to be considered as
having soundness of mind or having testamentary capacity:
1. He must know of the estate to be disposed of;
2. He must know the proper object of his bounty; and
3. He must know the character of the testamentary act
It is true that the testimony discloses the fact that he was at
that time extremely ill, in an advanced stage of tuberculosis
complicated with severe intermittent attacks of asthma; that
he was too sick to rise unaided from his bed; that he needed
assistance even to rise himself to a sitting position; and that
during the paroxysms of asthma to which he was subject he
could not speak; but all this evidence of physical weakness
in no wise establishes his mental incapacity or a lack of
testamentary capacity, and indeed the evidence of the
subscribing witnesses as to the aid furnished them by the
testator in preparing the will, and his clear recollection of the
boundaries and physical description of the various parcels of
land set out therein, taken together with the fact that he was
able to give to the person who wrote the will clear and explicit
instructions as to his desires touching the disposition of his
property, is strong evidence of his testamentary capacity.
In our opinion, the evidence of record establishes in a
strikingly conclusive manner the execution of the instrument
propounded as the last will and testament of the deceased;
that it was made in strict conformity with the requisites
prescribed by law; and that, at the time of its execution, the
deceased was of sound mind and memory, and executed
the instrument of his own free will and accord.
7. Alsua-Betts vs CA (GR Nos. L-46430-31, July 30,
1979) Josol
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FIRST DIVISION
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE
MADARETA, ESTEBAN P. RAMIREZ, and THE
REGISTER OF DEEDS FOR ALBAY PROVINCE,
petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE,
FERNANDO BUENVIAJE, FERNANDO ALSUA,
represented by his guardian, CLOTILDE S. ALSUA and
PABLO ALSUA, respondents.
FACTS:
In 1949, Don Jesus Alsua and his wife, Dona Florentina
Ralla, together with all their children entered into a duly
notarized agreement over the then present and existing
properties of the spouses.
In 1955, the spouses separately executed their respective
holographic wills, the provisions of which were in
conformity and in implementation of the extrajudicial
partition of November, 1949. Their holographic wills
similarly provided for the institution of the other to his or her
share in the conjugal properties, the other half already to
be partitioned as part of the legitime of the four living
children. On 1959, Dona Florentina died. About 2 weeks
after the death of his wife, Don Jesus executed a new will,
thereby revoking and canceling his previous holographic
will which he made on 1955 and also its codicil. On1962,
Don Jesus died. Petitioner herein Alsua-Betts, as the
executrix named in the will filed a petition for the probate of
said new will of Don Jesus Alsua. Oppositions thereto were
filed by his children.
ISSUE:
Whether or not the questioned will of November, 1959 was
validly executed thereby validly revoking the previous will
and codicil he executed.
HELD:
YES. Don Jesus is not forever bound for his previous
holographic will and codicil as such would remain
revocable at his will. Art. 828 of the new Civil Code is clear:
―A will may be revoked by the testator at anytime before
his death. Any waiver or restriction of this right is void.
There can be no restriction that may be made on his
absolute freedom to revoke his holographic will and codicil
previously made. Though the law and jurisprudence are
clear that only questions about the extrinsic validity of the
will may be entertained by the probate court, the Court had,
on more than one occasion, passed upon the intrinsic
validity of a will even before it had been authenticated. The
fact that testator did not cause his will to be probated
during his lifetime, while his previous holographic will and
codicil were probated while he was alive does not mean
said testator lacks the requisite testamentary.
8. People vs Cruz (GR Nos. L-13219-20, August 31,
1960) Jueves
G.R. Nos. L-13219-20 August 31, 1960
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
Vs. REMIGIO CRUZ, defendant-appellant.
Facts: The appellant was married to Natividad Concepcion
in March, 1953. They lived in Manila in the house of
Natividad's parents. A daughter was born to them the
following year. In 1954 Natividad separated from the
appellant allegedly because he used to beat her up.
Reconciled sometime thereafter, they lived again together.
In 1955 sometime thereafter, they lived again together. In
1955 she once more left the conjugal abode and stayed
with her parents in Cabanatuan City. Again he was able to
convince her to live with him.
In the first week of June, 1956 the appellant brought his
wife and sick daughter to his parent's home in Sta. Rita,
Pampanga. He looked dirty, his eyes were sunken and he
complained of headaches. On arriving in said place, he
fetched a physician, a certain Dr. Lising (a boyhood friend),
to treat his daughter. When he returned with the doctor, he
found that his wife and daughter had left for Cabanatuan
City. He was so enraged that he slashed with a bolo a jar of
sugar.
On June 9, 1956, the appellant followed his wife and
daughter to Cabanatuan City in her parent's home. He tried
to convince her to return to Manila with him. He even
solicited the help of his father-in-law. From June 9 to 11,
1956, the appellant helped in the household chores, was
polite to his parents-in-law and was attentive to his
daughter.
At about eight o’clock in the evening of June 11, 1956,
while the appellant’s father reported to work as a policeman
at the city public market and while the sisters of Natividad
went upstairs to sleep, they were awakened by the sound
of banging on the wall and shattering of chinaware below.
Rushing down, they saw the appellant and Natividad
talking by the kitchen door with the former holding a bolo.
When Anita was about to approach the couple, the
appellant started hacking his wife with the bolo. Anita and
Lourdes ran out and called for help, particularly intending to
summon their uncle, Daniel Cabunta, who lived about one
and one-half meters away. The appellant chased them and
overtook Anita whom he hacked on the head with the bolo
until she lost consciousness. Daniel was awakened and,
upon looking out of his window, saw the appellant hacking
Anita with the bolo. He went down and told the appellant to
stop. The latter swung his bolo at him. Daniel parried the
blow and was able to wrest away the bolo. The appellant
ran towards the City Hall, while Daniel who was in pursuit,
shouted for a policeman to stop the former.
Policeman Pedro Villanueva heard the call and intercepted
the appellant. When asked why he was running, the
appellant told the policeman that he was very much
aggrieved. The policeman locked the appellant in jail and
investigated the scene of the crimes.
Issue: Whether or not the the appellant is correct in arguing
that he was insane and deprived of reason and will at the
time of the commission of the acts in questions.
Held: No. It is the policy and accepted standard of
jurisprudence that the allegation of insanity or imbecility
must be clearly proved. The law always presumes all acts
to be voluntary, and it is thus improper to conclude that
acts were executed unconsciously. In order that insanity
may be taken as an exempting circumstance, there must
be complete deprivation of intelligence in the commission
of the act, that the accused acted without the least
discernment. Mere abnormality of his mental faculties does
not exclude imputability.
Appellant, according to the report dated October 29, 1956,
of Dr. Carlos Vicente, Psychiatrist of the National Mental
Hospital, and Dr. J.M. Clarin, Chief, Male Service
Department of the same hospital, was able to recount all
the important events in his life between May 2, 1948, and
June 11, 1956.
An overall appreciation of the relevant circumstances
revealed in the record has led us to reject the plea of
insanity. There is more indication of the passionate nature
of the appellant, his tendency to violent fits when angry.
Breaking glasses and smashing dishes are simply
demonstrations of an explosive temper, not clear and
satisfactory proof of insanity. He was not deprived of the
consciousness of his acts. He was obfuscated by the
refusal of his wife to live with him. He did not turn violent
with the policeman who intercepted him and inquired why
he was running. He answered to the policeman
responsively and allowed himself to be led to jail.
9. Tenefrancia vs Abaja (GR No. L-2415, July 31, 1950)
Jungco
FACTS:
This is an appeal from an order of the Court of First
Instance of Negros Occidental denying probate of a will.
The will in question purports to have been executed in
August, 1943, by Paula Toray, who died the following month.
Presented for probate by one of the legatees, the herein
appellant Eustaquia Tenefrancia, it was opposed by Rosa
Abaja, daughter of the deceased Eulogia Abaja, instituted
heir in an earlier will executed by the same testatrix and her
deceased husband. The lower court disallowed the will on
the ground that it was not executed in accordance with law
in that the attestation clause did not state that the testatrix
signed the will in the presence of the instrumental witnesses.
ISSUE: Whether or not the will is valid.
RULING:
No. Among the formalities prescribed by law (section 618
of Act No. 190, as amended by Act No. 2645) to a valid will
is the requirement that the attestation clause should state
"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." This requirement was not complied with in the
present case, for the attestation clause fails to state that
fact.
By the attestation clause is meant "that clause wherein the
witnesses certify that the instrument has been executed
before them, and the manner of the execution of the same."
(Black, Law Dictionary.) It is signed not by the testator but
by the witnesses, for it is a declaration made by the witness
and not by the testator. And the law is clear that it is the
attestation clause that must contain a statement, among
others that the testator signed the will in the presence of
the witnesses. Without that statement, the attestation
clause is fatally defective.
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10. Vda. De Ramos vs CA (GR No. L-40804, January 31,
1978) Lozano
FACTS:
Adelaida Nista filed a petition for probate of the last will and
testament dated March 9, 1966 and codicil dated April 18,
1963 of deceased Eugenia Danila. Nista also prayed she or
any other person be appointed as administrator of the
estate, and that in case there is no opposition and the
value thereof be less than 10k pesos, the said estate be
summarily settled in accord with the Rules.
Buenaventura and Marcelina Guerra filed an opposition
alleging they are the legally adopted son and daughter of
the late spouses Florentino Guerra and Eugenia Danila,
that the codicil was procured through fraud and undue
influence, that the formalities required by law in the
execution of both the will and codicil were not complied
with as they were not properly attested to or executed and
not expressing the free will and deed of Eugenia Danila,
that the latter had already executed a duly probated last will
and testament dated Nov. 5, 1951, and that petitioner is not
competent and qualified to act as administrator of the
estate.
Petitioner and oppositors then entered into a compromise
agreement which was approved by the lower court.
A few weeks later, Rosario de Ramos, Miguel Danila, Felix
Danila, Miguel Gavino, Amor Danila Consolacion Santos,
and Miguel Danila, son of the late Fortunato Danila, filed a
motion for leave to intervene as co-petitioners alleging that
being instituted heirs or devisees, they have rights and
interests to protect in the estate of the late Eugenia Danila.
On December 6, 1968, the intervenors also filed a motion
for new trial and/or re-hearing and/or relief from judgment
and to set aside the judgment based on compromise dated
Nov. 5, 1968. The oppositors interposed an opposition to
the motion to which the intervenors filed their reply.
The lower court however thus ruled in favor of petitioner
Adelaida Nesta---- the March 9, 1963 will and April 18,
1963 codicil were duly signed by the testatrix in accordance
with the formalities prescribed by law and declared
probated. In that decision, although two of the attesting
witness Odon Sarmiento and Rosendo Paz, testified that
they did not see the testatrix Eugenia Danila sign the will
but that the same was already signed by her when they
affixed their own signatures thereon, the trial court gave
more weight and ment to the .'straight-forward and candid"
testimony of Atty. Ricardo Barcenas, the Notary Public who
assisted in the execution of the wilt that the testatrix and
the three (3) instrumental witnesses signed the will in the
presence of each other, and that with respect to the codicil
the same manner was likewise observed as corroborated
to by the testimony of another lawyer, Atty. Manuel Alvero
who was also present during the execution of the codicil.
Oppositors Marcelina Guerra and the heirs of
Buenaventura Guerra appealed to the CA. The CA ruled
that the trial court was correct in setting aside the
compromise agreement and allowing the petitioners to
participate in the probate proceedings. It however
disallowed the probate of the will on the ground that the
evidence failed to establish that testatrix Eugenia Danila
signed her will in the presence of the instrumental witness
in accord with Art. 805 of the NCC, as testified by the two
surviving instrumental witnesses.
ISSUE:
WON the will and codicil were executed in accordance with
the formalities of the law.
HELD:
YES. The Supreme Court overturned the CA and restated
the trial court decision allowing probate of the will and
codicil in question.
There was ample and satisfactory evidence to convince the
Court that the will and codicil were executed in accordance
with the formalities required by law. The documents were
prepared by a lawyer, Atty. Manuel Alvero. The execution
of the same was evidently supervised by his associate,
Atty. Ricardo Barcenas and before whom the deeds were
also acknowledged.
The solemnity surrounding the execution of a will was
attended by some intricacies not usually within the
comprehension of an ordinary layman. The object is to
close the door against bad faith and fraud, to avoid
substitution of the will and testament, and to guarantee
their truth and authenticity. If there should be any stress on
the participation of lawyers in the execution of a will, other
than an interested party, it cannot be less than the exercise
of their primary duty as members of the Bar to uphold the
lofty purpose of the law. There is no showing that the
above-named lawyers had been remiss in their sworn duty.
Consequently, respondent court failed to consider the
presumption of regularity in the execution of the questioned
documents. There were no incidents brought to the
attention of the trial court to arouse suspicion of anomaly.
While the opposition alleged fraud and undue influence, no
evidence was presented to prove their occurrence. There is
no question that each and every page of the will and codicil
carry the authentic signatures of Eugenia Danila and the
three (3) attesting witnesses. Similarly, the attestation claim
far from being deficient, were properly signed by the
attesting witnesses. Neither is it disputed that these
witnesses took turns in signing the will and codicil in the
presence of each other and the testatrix. Both instruments
were duly acknowledged before a Notary Public who was
all the time present during the execution.
The presumption of regularity can of course be overcome
by clear and convincing evidence to the contrary, but not
easily by the mere expediency of the negative testimony of
Odon Sarmiento and Rosendo Paz that they did not see
the testatrix sign the will. A negative testimony does not
enjoy equal standing with a positive assertion, and faced
with the convincing appearance of the will, such negative
statement must be examined with extra care.
Unlike other deeds, ordinary wills by necessity of law must
contain an attestation clause Which, significantly is a
separate memorandum or record of the facts surrounding
that the conduct of execution. Once signed by the attesting
witnesses, it that compliance with the indispensable legal
formalities had been observed. In the attestation clause,
the witnesses do not merely attest to the signature of the
testatrix but also to the proper execution of the will, and
their signature following that of the testatrix show that they
have in fact at not only to the genuineness of the testatrix's
signature but also to the due execution of the will as
embodied in the attention clause. By signing the wilt the
witnesses impliedly to the truth of the facts which admit to
probate, including the sufficiency of execution, the capacity
of the testatrix, the absence of undue influence, and the
like.
In the case at bar, there is a a disparity in the quality of the
testimonies of Odon Sarmiento and Rosendo Paz on one
hand, and the Notary Public, Atty. Ricardo A. Barcenas, on
the other. The testimony of Odon Sarmiento was
contradicted by his own admission. Though his admission
to the effect that "when Eugenia Danila signed the
testament (he) and the two other attesting witnesses
Rosendo Paz and Calixto Azusada were present" was
made extrajudicially, it was not squarely refuted when
inquired upon during the trial.
With respect to the testimony of Rosendo Paz, it had been
refuted by the declaration of Atty. Barcenas. Paz says was
fetched by Felix Danila from his place of work in order to
act as witness to a will. He did not know what the document
he signed was all about. Although he performed his
function as an attesting witness, his participation was rather
passive. The Court did not expect, therefore, that his
testimony, "half-hearted" as that of Sarmiento, be as candid
and complete as one proceeding from a keen mind fully
attentive to the details of the execution of the deeds. Quite
differently, Atty. Ricardo A. Barcenas, more than a direct
witness himself, was purposely there to oversee the
accomplishment of the will and codicil. His testimony is an
account of what he actually heard and saw during the
conduct of his profession. There is no evidence to show
that this lawyer was motivated by any material interest to
take sides or that his statement is truth perverted.
It has been regarded that the function of the Notary Public
is, among others, to guard against any illegal or immoral
arrangements in the execution of a will. In the absence of
any showing of self-interest that might possibly have
warped his judgment and twisted his declaration, the
intervention of a Notary Public, in his professional capacity,
in the execution of a will deserves grave consideration.
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11. Leynez vs Leynez (GR No. L-46097, October 18,
1939) Mangub
G.R. No. L-46097 October 18, 1939
TEOFILA ADEVA VIUDA DE LEYNEZ,
petitioner,vs.IGNACIO LEYNEZ, respondent.
Doctrine: 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.
FACTS:
This is a petition for a writ of certiorari to review the decision
of the Court of Appeals affirming the decision of the Court of
First Instance of Mindoro denying probate of the will of the
deceased Valerio Leynez, on the ground that its attestation
clause does not conform to the requirements section 618, as
amended, of the Code of Civil Procedure.
The question presented is, under section 618, as amended,
of the Code of Civil Procedure, is this attestation clause
legally sufficient? The pertinent portion of this section of the
Code is as follows:
. . . 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, an the later witnessed
and signed the will and all pages thereof in the
presence of the testator and of each other.
The alleged defect in the attestation clause of the
controverted will is that it fails to state that the testator and
the three witnesses signed each and every page of the will
in the manner prescribed by law.
Against this conclusion of the Court of Appeals, petitioner
puts forward the contention that it has decided a question of
substance in a way not probably in accord with the law and
the applicable decisions of this court (Rule 47, paragraph e
[1] of Supreme Court.) The rule of liberal construction of the
applicable law should, petitioner avers, be held to apply in
the case at bar, and in support of her contention she invokes
a long array of cases. Respondent, on the other hand,
equally invokes a number of cases wherein, he contends,
the rule of strict construction was made to prevail.
ISSUE:
Whether or not the attestation clause conforms with the
requirements set forth in Section 618, as amended, of the
Civil Code of Civil Procedure.
RULING: YES
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.
A will, therefore, should not be rejected where its attestation
clause serves the purpose of the law. The law-making body,
in recognition of the dangers to which testamentary
dispositions are apt to be subject in the hands of
unscrupulous individuals, has surrounded the execution of
the wills with every solemnity deemed necessary to
safeguard it.
This purpose was indicated when our legislature provided for
the exclusion of evidence aliunde to prove the execution of
the will. We should not, however, attribute the prohibition as
indicative of a desire to impose unreasonable restraint or
beyond what reason and justice permit.
It could not have been the intention of the legislature in
providing for the essential safeguards in the execution of a
will to shackle the very right of testamentary disposition
which the law recognizes and holds sacred. The
pronouncement of this Court in Abangan vs. Abangan (40
Phil., 476, 479), expresses the sound rule to which we have
recently adhered in principle.
"The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and
frustrative of the testator’s last will, must be disregarded."
It follows that the writ of certiorari should be, as it is hereby,
granted and the judgment of the Court of Appeals reversed,
with the result that the controverted will, Exhibit A, of the
deceased Valerio Leynez, shall be admitted to probate. So
ordered, with costs against the respondent-appellee. So
ordered.
12. Abangan vs Abangan (GR No. 13431, November 12,
1919) Miranda
In re will of Ana Abangan. GERTRUDIS ABANGAN,
executrix-appellee,
vs. ANASTACIA ABANGAN, ET AL., opponents-appellants.
AVANCEÑA, J.:
FACTS:
On September 19, 1917, CFI of Cebu admitted to probate
Ana Abangan’s will executed July, 1916. From this decision
the opponents appealed.
Said document, duly probated as Ana Abangan's will,
consists of 2 sheets. The first contains all the disposition of
the testatrix, duly signed at the bottom by Martin Montalban
(in the name and under the direction of the testatrix) and by
three witnesses. The following sheet contains only the
attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on
the left margin by the testatrix and the three witnesses, nor
numbered by letters. These omissions, according to
appellants’ contention, are defects whereby the probate of
the will should have been denied.
ISSUE: Whether or not the will was duly admitted to probate.
RULING: YES
In requiring that each and every sheet of the will be signed
on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 evidently has for its
object the avoidance of substitution of any of said sheets
which may change the disposition of the testatrix. But when
these dispositions are wholly written on only one sheet (as
in the instant case) signed at the bottom by the testator and
three witnesses, their signatures on the left margin of said
sheet are not anymore necessary as such will be
purposeless.
In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part of
the sheet, it is likewise clear that the object of Act No. 2645
is to know whether any sheet of the will has been removed.
But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot
be hidden.
In a will consisting of two sheets the first of which contains
all the testamentary dispositions and is signed at the bottom
by the testator and three witnesses and the second contains
only the attestation clause and is signed also at the bottom
by the three witnesses, it is not necessary that both sheets
be further signed on their margins by the testator and the
witnesses, or be paged.
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and
frustative of the testator’s last will, must be disregarded.
13. Cagro vs Cagro (GR No. L-5826, April 29, 1953)
Sandalo
FACTS:
This case is an appeal interposed by the oppositors,
namely Pelagio Cagro, et al., to a decision held by the
Samar CFI as regards to the validity of the will that was
allegedly executed by Vicente Cagro.
The appellants argue that the will in question is fatally
defective because the attesting witnesses did not sign the
attestation clause at the bottom, even though the page
containing the attestation clause was signed by the said
witnesses on the left-hand margin.
According to appellee, Jesusa Cagro, the 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.
ISSUE:
Whether or not the will allegedly executed by Vicente
Cagro is valid even without the signatures of the attesting
witnesses at the bottom of the attestation clause.
RULING:
The Supreme Court ruled that no, the will allegedly
executed by Vicente Cagro is not valid because the
attesting witnesses did not sign the attestation clause at the
bottom.
The Court stresses that the argument of the appellee is
untenable because 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.
Dissenting opinion from Tuason, J.:
The law on wills does not provide that the attesting witness
should sign the clause at the bottom. In the absence of
such provision, there is no reason why signatures on the
margin are not good. A letter is not any the less the writer's
simply because it was signed, not at the conventional place
but on the side or on top.
14. Taboada vs Rosal (GR No. L-36033, November 5,
1982) Santiago
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.
GUTIERREZ, JR. J.:
FACTS: 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 denied the probate of the will of Dorotea Perez
for want of a formality in its execution. The petitioner filed a
motion for reconsideration, which was deined by the new
judge.
Hence, the petitioner decided to file the present petition.
The respondent Judge interprets the above-quoted provision
of law to require that, for a notarial will to be valid, it is not
enough that only the testatrix signs at the "end" but all the
three subscribing witnesses must also sign at the same
place or at the end, in the presence of the testatrix and of
one another because the attesting witnesses to a will attest
not merely the will itself but also the signature of the testator.
It is not sufficient compliance to sign the page, where the end
of the will is found, at the left hand margin of that page.
Parenthetically, respondent Judge stated in his questioned
order that were it not for the defect in the place of signatures
of the witnesses, he would have found the testimony
sufficient to establish the validity of the will.
On the other hand, the petitioner maintains that Article 805
of the Civil Code does not make it a condition precedent or
a matter of absolute necessity for the extrinsic validity of the
will that the signatures of the subscribing witnesses should
be specifically located at the end of the will after the
signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an
import on the space or particular location where the
signatures are to be found as long as this space or particular
location wherein the signatures are found is consistent with
good faith and the honest frailties of human nature.
ISSUE: WON 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 for the validity of a formal
notarial will.
RULING: No. (Petition was granted)
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).
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.
The Court has 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".
Purpose of the requirement that the attestation clause
must state the number of pages used: “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. The ratio decidendi of relevant 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.” (Singson v.
Florentino, et al. (92 Phil. 161, 164))
“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.” (Icasiano
v. Icasiano (11 SCRA 422, 429))
15. Jaboneta vs Gustilo (GR No. 1641, January 19,
1906) Turno
FACTS:
On the 26th day of December, 1901, Macario Jaboneta
executed last will and testament. Being in the house of
Arcadio Jarandilla, in Jaro, in this province, he ordered that
the document in question be written, and calling Julio
Javellana, Aniceto Jalbuena, and Isabelo Jena as
witnesses, executed the said document as his will. They
were all together, and were in the room where Jaboneta was,
and were present when he signed the document, Isabelo
Jena signing afterwards as a witness, at his request, and in
his presence and in the presence of the other two witnesses.
Aniceto Jalbuena then signed as a witness in the presence
of the testator, and in the presence of the other two persons
who signed as witnesses. At that moment Isabelo Jena,
being in a hurry to leave, took his hat and left the room. As
he was leaving the house Julio Javellana took the pen in his
hand and put himself in position to sign the will as a witness,
but did not sign in the presence of Isabelo Jena; but
nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator
and of the witness Aniceto Jalbuena.
The lower court was of the opinion from the evidence
adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signatureh thereto in the
presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil
Procedure.
ISSUE: Whether the presence requirement in witnessing a
will was met given that one witness did not fully witness the
actual signing of another witness
RULING:YES, The fact that Jena was still in the room when
he saw Javellana moving his hand and pen in the act of
affixing his signature to the will, taken together with the
testimony of the remaining witnesses which shows that
Javellana did in fact there and then sign his name to the will,
convinces us that the signature was affixed in the presence
of Jena. The fact that he was in the act of leaving, and that
his back was turned while a portion of the name of the
witness was being written, is of no importance. He, with the
other witnesses and the testator, had assembled for the
purpose of executing the testament, and were together in the
same room for that purpose, and at the moment when the
witness Javellana signed the document he was actually and
physically present and in such position with relation to
Javellana that he could see everything which took place by
merely casting his eyes in the proper direction, and without
any physical obstruction to prevent his doing so, therefore
we are of opinion that the document was in fact signed
before he finally left the room.
The purpose of a statutory requirement that the witness sign
in the presence of the testator is said to be that the testator
may have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally
accepted tests of presence are vision and mental
apprehension. The evidence of record that the instrument
propounded in these proceedings was satisfactorily proven
to be the last will and testament of Macario Jaboneta,
deceased, and that it should therefore be admitted to
probate.
16. Nera vs Rimando (GR No. 5971, February 27, 1911)
Camacho
NERA VS. RIMANDO
G.R. No. L-5971 Feb. 27, 1911
Carson, J.
Facts:
A notarial will was executed in a small room with the testator
and the other subscribing witnesses at the time when they
attached their signatures to the instrument. A question was
raised as to the due execution of the will - 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 the Court was 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 is
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."
Issue:
Whether or not the subscribing witness was able to see the
testator and other witnesses in the act of affixing their
signatures.
Held:
Yes. The 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.
17. Andalis vs Pulgueras (GR No. 39209, March 10,
1934) Eliab
CASE 17. Andalis vs Pulgueras
(GR No. 39209, March 10, 1934)
Note: Ang fulltext ani mura ra ug digest :)
Topic/Doctrine: Forms of Wills
FACTS:
The alleged will of Victor Pulgueras was admitted to
probate. The testimony of only one to the attesting
witnesses was taken. The testimony was: a) that the 6
pages of the will were signed on the margin by the testator
and two of the witnesses on January 4, 1931; b) the
remaining three pages were signed by the testator and the
three attesting witnesses on January 11, 1931, and that the
third attesting witness then signed the first six pages.
ISSUE: Was the will executed properly?
HELD:
Such an execution of the will was not in conformity with the
law. Under our statute, the execution of a will is supposed
to be one act and cannot be legally effective if the
various participants sign on various days and in
various combinations of those present.
18. Avera vs Garcia and Rodriguez (GR No. 15566,
September 14, 1921) Kendall; Guinto
 When the petition for probate of a will is contested
the proponent should introduce all three of the
attesting witnesses, if alive and within reach of the
process of the court; and the execution of the will
cannot be considered sufficiently proved by the
testimony of only one, without satisfactory
explanation of the failure to produce the other two.
 will otherwise properly executed in accordance with
the requirements of existing law is not rendered
invalid by the fact that the paginal signatures of the
testator and attesting witnesses appear in the right
margin instead of the left.
Facts:
In proceedings in the court below, instituted by Eutiquia
Avera for probate of the will of one Esteban Garcia, contest
was made by Marino Garcia and Juan Rodriguez, the latter
in the capacity of guardian for the minors Jose Garcia and
Cesar Garcia. Upon the date appointed for the hearing, the
proponent of the will introduced one of the three attesting
witnesses who testified — with details not necessary to be
here specified — that the will was executed with all
necessary external formalities, and that the testator was at
the time in full possession of disposing faculties. Upon the
latter point the witness was corroborated by the person who
wrote the will at the request of the testator. Two of the
attesting witnesses were not introduced, nor was their
absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition
introduced a single witness whose testimony tended to show
in a vague and indecisive manner that at the time the will
was made the testator was so debilitated as to be unable to
comprehend what he was about.
The trial judge found that the testator at the time of the
making of the will was of sound mind and disposing memory
and that the will had been properly executed. He accordingly
admitted the will to probate.
Issues:
1. whether a will can be admitted to probate, where
opposition is made, upon the proof of a single
attesting witness, without producing or accounting
for the absence of the other two
2. whether the will in question is rendered invalid by
reason of the fact that the signature of the testator
and of the three attesting witnesses are written on
the right margin of each page of the will instead of
the left margin.
Ruling:
1. NO, such will cannot be admitted. However, this
point was not raised by appellant before the
lower court.
When the petition for probate of a will is contested the
proponent should introduce all three of the attesting
witnesses, if alive and within reach of the process of the
court; and the execution of the will cannot be considered
sufficiently proved by the testimony of only one, without
satisfactory explanation of the failure to produce the other
two.
no explanation was made at the trial as to why all three of
the attesting witnesses were not produced, but the probable
reason is found in the fact that, although the petition for the
probate of this will had been pending from December 21,
1917, until the date set for the hearing, which was April 5,
1919, no formal contest was entered until the very day set
for the hearing; and it is probable that the attorney for the
proponent, believing in good faith that probate would not be
contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will
was contested, incautiously permitted the case to go to proof
without asking for a postponement of the trial in order that
he might produce all the attesting witnesses.
however, that this point was not raised by the appellant in
the lower court either upon the submission of the cause for
determination in that court or upon the occasion of the filing
of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for the first
time in this court.
2. The will is valid even if signatures of the
witnesses were written on the right margin.
Under section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, it is essential to the validity of a
will in this jurisdiction that the names of the testator and the
instrumental witnesses should be written on the left margin
of each page, as required in said Act, and not upon the right
margin.
the authentication of the will, and of every part thereof, it can
make no possible difference whether the names appear on
the left or no the right margin, provided they are on one or
the other.
The instrument now before us contains the necessary
signatures on every page, and the only point of deviation
from the requirement of the statute is that these signatures
appear in the right margin instead of the left. By the mode of
signing here adopted every page and provision of the will is
authenticated and guarded from possible alteration in
exactly the same degree that it would have been protected
by being signed in the left margin; and the resources of
casuistry could be exhausted without discovering the
slightest difference between the consequences of affixing
the signatures in one margin or the other.
It results that the legal errors assigned are not sustainable,
and the judgment appealed from will be affirmed.
19. De Gala vs Gonzales and Ona (GR No. L-30289,
March 26, 1929) Lagarto
CASE DIGEST:
19. De Gala vs. Gonzales and Ona attestation clause does not mention the placing of the
thumbmark of the testratix in the will and the fact that the
(GR No. L-30289, March 26, 1929) testatrix signed in the presence of the witness was the stated
in the attestation clause but only in the body of the will.
Facts:
Issue:
Severina Gonzales died and left a will designating Petitioner
Serapia De Gala (De Gala) as special executrix. Petitioner Whether or not the will is valid?
filed the will with the court for probate. Respondent Gonzales
filed an opposition on the ground that the will did not comply
with the requirements stated in Section 618 of the Code of
Civil Procedure. Petitioner Degala was assigned as special Ruling:
administratix of the estate. Petitioner demanded to
Respondent Ona, the surviving husband of Severina YES.
Gonzales, that the property be surrendered to petitioner for
inventory. Failure to do so, the Court of First Instance
ordered him to deliver the properties to Petitioner.
Section 618 of the Code of Civil Procedure provides that the
testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
Instead, Respondent Ona filed a motion praying that the aforesaid, each and every page thereof…
appointment of Petitioner as special admnistratix and that he
be designated in her place. Consequently, petitioner was
removed and Respondent Ona was designated.
But this case is different.
The trial court declared the will valid and ordered that it be
admitted for probate. Petitioner appealed from the order Here, testatrix placed her thumb-mark on the will in the
arguing that she was wrongfully removed as special proper places. When the law says that the will shall be
administratix and respondents also appealed from the order signed by the testator or testatrix, the law is fulfilled not
probating the will on the ground that it failed to satisfy the only by the customary written signature but by the
requirements in Sections 618 of the Code of Civil procedure. testator or testatrix’ thumb-mark. A statute requiring a
will to be signed is satisfied if the signature is made by
the testator’s mark.
Respondents argued that Serapia, being requested by the
testatrix to sign her name, failed to put her own name, the
While it is true that the attestation clause failed to include
that the testatrix signed by thumb-mark, but it appears that
the signature was affixed in the presence of the witnesses
and the fact that the testratix signed the will before the
witnesses is stated ,not in the attestation clause, but in the
body of the will, is sufficient.
It maybe conceded that the attestation clause is not
artistically drawn and that, standing alone, it does not
quite meet the requirements of the statute, but taken in
connection with the last clause of the body of the will, it
is fairly clear and sufficiently carries out the legislative
intent; it leaves no possible doubt as to the authenticity
of the document.
20. Icasiano vs Icasiano (GR No. L-18979, June 30,
1964) Maturan
CASE NO. 20
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.
REYES, J.B.L., J.
6/2/1956 – Josefa Villacorte executed a last will and
testament & its duplicate at her daughter’s house (Felisa
Icasiano, Pedro Guevara St., MNL)
 published before and attested by three instrumental
witnesses
o Atty. Justo P. Torres, Jr. (testified as to the
due execution and authenticity of the will)
o Atty. Jose V. Natividad (testified as to the
due execution and authenticity of the will)
o Mr. Vinicio B. Diy
 will was acknowledged by the testatrix (Josefa
Villacorte) and by the said three instrumental
witnesses on the same date before Atty. Jose
Oyengco Ong, Notary Public in and for the City of
Manila; (testified as to the due execution and
authenticity of the will)
 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.
 Atty. Sayson testified upon cross examination that
he prepared one original and two copies of Josefa
Villacorte's 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.
10/2/1958 – A special proceeding has commenced
regarding a petition for the allowance and admission to
probate of the original & duplicate document representing
the true last will & testament of the late Josefa Villacorte &
appointing Celso Icasiano as executor.
11/8/1958 – The court set the proving of the alleged will. Due
notice was given (3 successive weeks in Manila Chronicle,
personal service to the known heirs).
10/31/1958 – 11/10/1958 – Natividad Icasiano (Celso’s
daughter), filed her opposition and petitioned herself to be
appointed as special administrator. Celso Icasiano objected.
11/18/1958 - Court issued an order appointing the Philippine
Trust Company as special administrator.
2/18/1959 – Enrique Icasiano (Celso’s son), also filed a
manifestation adopting as his own Natividad's opposition to
the probate of the alleged will.
3/19/1959 – 6/1/1959 – Celso Icasiano introduced his
evidence, but eventually filed an amended and supplemental
petition, alleging that the late Josefa Villacorte left a will
executed in duplicate with all the legal requirements, and
that he was, on that dates submitting the signed duplicate
(found only on or about May 26, 1959)
6/17/1959 – Natividad and Enrique Icasiano filed their joint
opposition to the admission of the amended and
supplemental petition.
The court admitted the said petition and the opposition. After
the presentation of evidence and several hearings, the court
issued the order admitting the will and its duplicate to
probate.
Natividad and Enrique appealed directly to SC the amount
involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.
During the hearing, it was found that the original copy of the
will does not contain Atty. Jose Natividad’s signature on
page 3, but the duplicate copy attached to the amended and
supplemental petition contained Atty. Natividad’s signature.
Atty. Natividad admitted that he may have lifted two pages
instead of one, but affirmed that page 3 in the duplicate copy
was signed in his presence.
Proponents’ testimonies showed that the original and
the duplicate copy of the will were:
 duly signed, page numbered and subscribed;
 that the attestation clause 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
Oppositors-appellants
 introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate are not
genuine nor were they written or affixed on the same
occasion as "the original”
 will was 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
 Celso Icasiano stand to profit; from properties held
by them as attorneys-in-fact of the deceased and not
enumerated or mentioned therein, while Natividad
and Enrique 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.
Issue 1: WON the failure of one of the subscribing
witnesses to affix his signature to a page is sufficient to
deny probate of the will.
Issue 2: WON the will was executed under
circumstances of fraud and undue influence & pressure,
sufficient to deny probate of the will.
RULING 1: No, in this case, the failure of one of the
subscribing witnesses to affix his signature to a page is
not enough to deny probate of the will.
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. Natividad not
being able to sign was a MERE OVERSIGHT. Not a fatal
defect.
SC was satisfied with the trial court’s records, which proved
that:
 The testatrix (Josefa) signed both the orig and
duplicate copies of the will in the presence of 3
attesting witnesses & the notary public who
acknowledged the will;
 The will was executed in a language known to and
spoken by testatrix & witnesses (Tagalog). Such
was read to and by Josefa and Atty. Samson before
signing;
 The attestation clause was executed in a language
known to and spoken by testatrix & witnesses
(Tagalog).
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.
Impossibility of substitution was established by:
 Signatures of testatrix and 2 other witnesses on the
defective page
 coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix
and all three witnesses.
Re: Expert witness regarding the signatures not being
genuine
SC is unconvinced. Not only because it is directly
contradicted by another expert from the proponents, but the
inadequacy of standards used to prove the ingenuity claim.
(the differences between the standard and questioned
signatures are beyond the writer's range of normal scriptural
variation.) HAHAHAHA in layman’s term, nalahi lagi iyang
agi kaya fake ang pirma 😊
Facts such as the testatrix’s old age, variability of signatures,
writing fatigue, the duplicate signed right away after original
and the standard and challenged writings, when affixed to
different kinds of paper, with different surfaces and reflecting
power, will give variance to the blueness of the ink used,
were not taken into account.
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).
RULING 2: No adequate evidence of fraud or undue
influence.
Favoritism among some heirs is not enough proof of undue
influence, due to diversity of apportionment. 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.
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.
Re: Since the original of the will is in existence and
available, the duplicate is not entitled to probate
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 serves
to prove that the omission of one signature in the third page
of the original testament was inadvertent and not intentional.
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 (alleging that the late Josefa Villacorte left a will
executed in duplicate with all the legal requirements, and
that he was, on that dates submitting the signed duplicate
(found only on or about May 26, 1959) 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.
There was due notice to Natividad and Enrique, and the said
amendment did not deprive any substantial right.
21. Garcia vs Lacuesta (GR No. L-4067, November 29,
1951) Muana
IN MATTERS OF THE WILL OF MERCADO VS.
LACUESTA
G.R. NO. L-4067 / NOVEMBER 29, 1951
PARAS, C.J.:
The case is an appeal to the decision of the CA
disallowing the will of Antero Mercado.
THE 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 (Sgd.) "ROSENDA
EVANGELISTA CORTES
(Sgd.) BIBIANA ILLEGIBLE
According to the CA in reversing the judgement, 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.
Petitioner argued that 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.
ISSUE: WHETHER OR NOT THE WILL IS VALID.
RULING:
As to the attestation clause
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.
As to the signature
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.
22. Barut vs Cabacungan (GR No. 6285, February 15,
1921) Rabanes
PEDRO BARUT vs FAUSTINO CABACUNGAN, ET. AL.
FACTS: Barut applied for the probate of the will of deceased,
Maria Salomon. 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.
After disposing of her property, the testatrix revokes all
former wills made by her. She also stated in the will that
being unable to read or write, the will was read to her by
Ciriaco Concepcion and Timothea Inoselda and that she had
instructed Severo Agayan to sign her name to it as testatrix.
The probate was contested by a number of the relatives of
the deceased on various grounds, among them that a later
will had been executed by the deceased was involved in
another case.
The probate court found that the will was not entitled to
probate because the handwriting of the person who it is
alleged signed the name of the testatrix to the will for an her
behalf looked more like the handwriting of one of the other
witnesses to the will than to the person whose handwriting it
was alleged to be. Hence, the probate court denied the
probate because the signature seemed to not have been by
Severo Agayan but by another witness.
ISSUE: Whether or not the dissimilarity in handwriting
sufficient to deny probate of the will
HELD: No.
The SC does not believe that the mere dissimilarity in writing
thus mentioned by the lower 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 does not believe that this contention of the
probate court 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.
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.
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. Nor is such a 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.
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 nonetheless 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.
23. Balonan vs Abellana (GR No. L-15153, August 31,
1960) Alaan
Facts:
A 2-page Will and Testament by the testatrix Anacleta
Abellana was sought to be probated at rhe CFI of
Zamboanga City. ON the second page, which is the last
page of the Will, on the left margin appears the signature of
Juan Bello under whose name appears handwritten the
following phrase 'Por la Testadora Anacleta Abellana' (for
the testatrix Anacleta Abellana). (The CFI admitted the
probate of the will. Hence, this appeal, the petitioner
contending that the signature of Juan A. Abello on top of the
phrase ‘por la tetadora Anacleta Abellana did not comply
with the requirements of the law prescribing the manner in
which it shall be executed.)
ISSUE:
Does the signature of Dr. Juan A. Abello above the
typewritten statement "Por la Testadora Anacleta Abellana .
. ., Ciudad de Zamboanga," comply with the requirements of
the law prescribing the manner in which a will shall be
executed
HELD:
The present law, Article 805 of the Civil Code, in part
provides as follows:
"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." (Italics supplied.)
In the case of Barut vs. Cabacungan, 21 Phil., 461, we held
that the important thing is that it clearly appears that the
name of the testatrix was signed at her express direction; it
is unimportant whether the person who writes the name of
the testatrix signs his own or not. Cases of the same import
are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta
Abellana, does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello. There is, therefore,
a failure to comply with the express requirement in the law
that the testator must himself sign the will, or that his name
be affixed thereto by Some other person in his presence and
by his express direction.
It appearing that the above provision of the law has not been
complied with, we are constrained to declare that the said
will of the deceased Anacleta Abellana may not be admitted
to probate.
24. Unson vs Abella (GR No. 78571, June 12, 1922)
Atup
In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Facts: On July 19, 1918, Doña Josefa Zalamea y
Abella(testatrix), single, 60 years old, who was residing in
the municipality of Province of Laguna, executed her last
will and testament with an attached inventory of her
properties, in the presence of three witnesses, who signed
with her all the pages of said documents. The testatrix died
on the 6th of January, 1921, and, as the record shows, the
executor appointed in the will, Pedro Unson(appellee), filed
in the court of First Instance of Laguna on the 19th of
January of the same year an application for the probate of
the will and the issuance of the proper letters of
administration in his favor.
To said application an opposition was presently by Antonio
Abella, Ignacia Abella, Avicencia Abella, and Santiago
Vito(appellant), alleging that the supposed will of the
deceased Zalamea was not executed in conformity with the
provinces of the law, inasmuch as it was not paged
correlatively in letters, nor was there any attestation clause
in it, nor was it signed by the testatrix and the witnesses in
the presence of each other.
Trial having been held and ordered the probate of the will
holding that the documents contained the true and last will
of the deceased Josefa Zalamea.
1st issue: Whether or not the court erred in admitting the
will to probate notwithstanding the omission of the
proponent(appellee) to produce one of the attesting
witnesses.
Held: No. As announced in Cabang vs. Delfinado,
supra, the general rule is that, where opposition is
made to the probate of a will, the attesting
witnesses must be produced. But there are
exceptions to this rule, for instance, (1) when a
witness is dead, or (2)cannot be served with
process of the court, or (3) his reputation for truth
has been questioned or (4)he appears hostile to
the cause of the proponent. In such cases, the will
may be admitted to probate without the testimony
of said witness, if, upon the other proofs adduced
in the case, the court is satisfied that the will has
been duly executed.
Wherefore, we find that the non-production of the
attesting witness, Pedro de Jesus, as accounted
for by the attorney for the proponent at the trial,
does not render void the decree of the court a quo,
allowing the probate.
2nd issue: Whether or not the testament is valid despite the
fact that its paging is made in Arabic numerals and not in
letters.
Held: Yes. As to the paging of the will in Arabic numerals,
instead of in letters, the Court adheres to the doctrine
announced in the case of Aldaba vs. Roque. It was held
that this way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch as either
one of these methods indicates the correlation of the pages
and serves to prevent the abstraction of any of them. This
means that the emission of paging does not necessarily
render the testament invalid.
The law provides that the numbering of the pages should
be in letters placed on the upper part of the sheet, but if the
paging should be placed in the lower part, would the
testament be void for this sole reason? The Court believes
not. The law also provides that the testator and the
witnesses must sign the left margin of each of the sheets of
the testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not.
The Court does not desire to intimate that the numbering in
letters is a requisite of no importance. But since its principal
object is to give the correlation of the pages, they hold that
his object may be attained by writing one, two, three, etc.,
as well as by writing A, B, C, etc.
The Court sees no reason why the same rule should not be
applied where the paging is in Arabic numerals, instead of
in letters, as in the inventory in question. So that, adhering
to the view taken by this court in the case of Abangan vs.
Abangan, and followed in Aldava vs. Roque, with regard to
the appreciation of the solemnities of a will, the court finds
that the judgement appealed from should be, as is hereby,
affirmed with the costs against the appellants.
25. Azuela vs CA (GR No. 122880, April 12, 2006)
Banggat
Azuela v. Court of Appeals
G.R. No. 122880 (2006)
FACTS: Petitioner Felix Azuela sought to admit to probate
the notarial will of Eugenia E. Igsolo. However, this was
opposed by Geralda Castillo, who was the attorney-in-fact of
“the 12 legitimate heirs” of the decedent. According to her,
the will was forged, and imbued with several fatal defects.
Particularly, the issue relevant in this subject is that the will
was not properly acknowledged. The notary public, Petronio
Y. Bautista, only wrote “Nilagdaan ko at ninotario ko
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila.”
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992. 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;" 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.
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. 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. 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.
ISSUE: Whether or not the will is fatally defective as it was
not properly acknowledged before a notary public by the
testator and the witnesses as required by Article 806 of the
Civil Code.
RULING: Yes, the will is fatally defective. By no manner of
contemplation can those words be construed as an
acknowledgment.
An acknowledgement is the act of one who has executed a
deed in going before some competent officer or court and
declaring it to be his act or deed. It involves an extra step
undertaken whereby the signore 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.
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.
26. Andalis vs Pulgueras (GR No. 39209, March 10,
1934) Cambe
--------------------------------
59 Phil. 643
G. R. No. 39209, March 10, 1934
HIPOLITO ANDALIS, PETITIONER AND APPELLEE, VS.
LUCIA PULGUERAS ET AL., OPPOSITORS AND
APPELLANTS.
DECISION
HULL, J.:
=====short lng kaau ang kaso.. wala na nako gi-
digest.. heehe====
This is an appeal from a decision of the Court of First
Instance of Camarines Sur admitting to probate an alleged
will of Victor Pulgueras, deceased. The testimony of only one
of the attesting witnesses was taken. His testimony was to
the effect that six pages of the will were signed on the margin
by the testator and two of the witnesses about the 4th of
January, 1931, that on the 11th of January, 1931, the
remaining three pages were signed by the testator and the
three attesting witnesses, and that the third attesting witness
then signed the first six pages.
Such an execution of the will was not in conformity with
article 618 of the Code of Civil Procedure as amended.
Under our statute, the execution of a will is supposed to
be one act and cannot be legally effective if the various
participants sign on various days and in various
combinations of those present.
The judgment of the Court of First Instance of Camarines
Sur is therefore reversed, and the will in question is
denied probate.
27. Cruz vs Villasor (De Gala)
GR No. L-32213, November 26, 1973
Facts:
Petitioner-appellant, the surviving spouse, opposed
the probate of the last will and testament of her late husband
Valente Z. Cruz. She alleged that the will was executed
through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the
testator having been fully informed of the content thereof,
particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the
Court allowed the probate of the said last will and testament.
According to the Petitioner, one of the three
witnesses (Atty. Angel H. Teves, Jr.), is also the Notary
Public who acknowledged the will. As the third witness is the
notary public himself, petitioner argues that the result is that
only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, maintains that there is substantial
compliance with the legal requirement of having at least
three attesting witnesses even if the notary public acted as
one of them.
Issue:
Whether the supposed last will and testament of the
late Valente Z. Cruz was executed in accordance with law.
Ruling:
The last will and testament in question was not
executed in accordance with law. The notary public before
whom the will was acknowledged cannot be considered as
the third instrumental witness since he cannot acknowledge
before himself his having signed the will. Consequently, if
the third witness were the notary public himself, he would
have to avow, assent, or admit his having signed the will in
front of himself. This cannot be done because he cannot split
his personality into two so that one will appear before the
other to acknowledge his participation in the making of the
will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral arrangement.
That function would defeated if the notary public were one of
the attesting instrumental witnesses. For them he would be
interested in sustaining the validity of the will as it directly
involves him and the validity of his own act. It would place
him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud.
To allow the notary public to act as third witness, or
one the attesting and acknowledging witnesses, would have
the effect of having only two attesting witnesses to the will
which would be in contravention of the law. Particularly, of
Article 805 that requires at least three credible witnesses to
act as such, and Article 806, which requires that, the testator
and the required number of witnesses must appear before
the notary public to acknowledge the will.
28. Alvarado vs Gaviola (GR No. 74695, September 14,
1993) Delute
Facts:
As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
execution, the testator did not read the final draft of the will
himself. Instead, private respondent, as the lawyer who
drafted the eight-paged document, read the same aloud in
the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the
reading with their own respective copies previously
furnished them.
Meanwhile, Brigido's holographic will was subsequently
admitted to probate on 9 December 1977. On the 29th day
of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye operation.
Brigido was then suffering from glaucoma. But the
disinheritance and revocatory clauses were unchanged. As
in the case of the notarial will, the testator did not personally
read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as
those of the notarial will) and the notary public who followed
the reading using their own copies.
A petition for the probate of the notarial will and codicil was
filed upon the testator's death by private respondent.
Petitioner, in turn, filed an opposition on the following
grounds: : that the will sought to be probated was not
executed and attested as required by law; that the testator
was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age;
that the will was executed under duress, or influence of fear
and threats; that it was procured by undue and improper
pressure and influence on the part of the beneficiary who
stands to get the lion's share of the testator's estate; and
lastly, that the signature of the testator was procured by
fraud or trick.
When the oppositor (petitioner) failed to substantiate the
grounds relied upon in the Opposition, a Probate Order was
issued on 27 June 1983 from which an appeal was made to
respondent court.
On 11 April 1986, the Court of Appeals rendered the decision
under review with the following findings: that Brigido
Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with
when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary
public following the reading with their respective copies of
the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to
the testator the contents of the drafted will was served.
Issues:
1. Was Brigido Alvarado blind for purpose of Art,
808 at the time his "Huling Habilin" and its
codicil were executed?
2. If so, was the double-reading requirement of
said article complied with?
Ruling:
1. Yes.
The following pronouncement in Garcia vs. Vasquez
13 provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the
will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is
to make the provisions thereof known to him, so that
he may be able to object if they are not in
accordance with his wishes.
Clear from the foregoing is that Art. 808 applies not
only to blind testators but also to those who, for one
reason or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the
separate occasions of their execution due to his
"poor," "defective," or "blurred" vision, there can be
no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind"
as it is used in Art. 808.
2. No, it is not strictly complied with. However, it was
held by the court that it was substantially complied.
Article 808 requires that in case of testators like
Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by
the notary public before whom the will was
acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document
before signing and to give him an opportunity to
object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond
cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private
respondent) who drafted the eight-paged will and
the five-paged codicil who read the same aloud to
the testator, and read them only once, not twice as
Art. 808 requires.
This Court has held in a number of occasions that
substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution
of wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to
be so rigid and inflexible as to destroy the
testamentary privilege.
In the case at bar, private respondent read the
testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the
notary public. Prior and subsequent thereto, the
 testator affirmed, upon being asked, that the
contents read corresponded with his instructions.
Only then did the signing and acknowledgement
take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and
codicil were not sufficiently made known and
communicated to the testator. On the contrary, with
respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had
affirmed the truth and authenticity of the contents of
the draft. The uncontradicted testimony of Atty. Rino
is that Brigido Alvarado already acknowledged that
the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity
to the draft.
29. IN THE MATTER OF THE PETITION FOR THE
PROBATE OF THE LAST WILL AND TESTAMENT OF
ENRIQUE S. LOPEZ RICHARD B. LOPEZ vs. DIANA
JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L.
TUAZON
G.R. No. 189984 November 12, 2012
Facts:
Enrique S. Lopez (Enrique) died leaving his wife, Wendy B.
Lopez (Lopez), and their four legitimate children, namely,
petitioner Richard, Diana, Marybeth and Victoria as
compulsory heirs. Before Enrique’s death, he executed a
Last Will and Testament and constituted Richard as his
executor and administrator.
Richard filed a petition for the probate of his father's Last Will
and Testament before the RTC with prayer for the issuance
of letters testamentary in his favor. Marybeth opposed the
petition contending that the purported last will and testament
was not executed and attested as required by law, and that
it was procured by undue and improper pressure and
influence on the part of Richard. Victoria also adopted the
said opposition.
After submitting proofs of compliance with jurisdictional
requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria
Lourdes Manalo (Manalo); and the notary public who
notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco).
The instrumental witnesses testified that after the late
Enrique read and signed the will on each and every page,
they also read and signed the same in the latter's presence
and of one another. Photographs of the incident were taken
and presented during trial. Manalo further testified that she
was the one who prepared the drafts and revisions from
Enrique before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his
client for more than 20 years. The latter consulted him in the
preparation of the subject will and furnished him the list of
his properties for distribution among his children. He
prepared the will in accordance with Enrique's instruction
and that before the latter and the attesting witnesses signed
it in the presence of one another, he translated the will, which
was written in English to Filipino and added that Enrique was
in good health and of sound mind at that time.
RTC: disallowed the probate of the will for failure to comply
with Article 805 of the Civil Code which requires a statement
in the attestation clause of the number of pages used upon
which the will is written. It held that while Article 809 of the
same Code requires mere substantial compliance of the
form laid down in Article 805 thereof, the rule only applies if
the number of pages is reflected somewhere else in the will
with no evidence aliunde or extrinsic evidence required.
While the acknowledgment portion stated that the will
consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC
observed that it has 8 pages including the acknowledgment
portion. As such, it disallowed the will for not having been
executed and attested in accordance with law.
CA: found no valid reason to deviate from the findings of the
RTC that the failure to state the number of pages of the will
in the attestation clause was fatal. It noted that while Article
809 of the Civil Code sanctions mere substantial compliance
with the formal requirements set forth in Article 805 thereof,
there was a total omission of such fact in the attestation
clause. Moreover, while the acknowledgment of the will
made mention of "7 pages including the page on which the
ratification and acknowledgment are written," the will had
actually 8 pages including the acknowledgment portion thus,
necessitating the presentation of evidence aliunde to explain
the discrepancy.
Hence, the instant petition.
Issue:
Whether the CA erred in affirming the RTC decision to
disallow the probate of will.
Held:
The provisions of the Civil Code on Forms of Wills,
particularly, Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
ART. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.
While Article 809 allows substantial compliance for defects
in the form of the attestation clause, Richard likewise failed
in this respect. The statement in the Acknowledgment
portion of the subject last will and testament that it "consists
of 7 pages including the page on which the ratification and
acknowledgment are written" cannot be deemed substantial
compliance. The will actually consists of 8 pages including
its acknowledgment which discrepancy cannot be explained
by mere examination of the will itself but through the
presentation of evidence aliunde.
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. Hence, the CA properly sustained
the disallowance of the will.
30. Testate Estate of the late Alipio Abada vs Abaja (GR
No. 147145, January 31, 2005) Gonzales
TESTATE ESTATE OF THE LATE ALIPIO ABADA,
BELINDA CAPONONG-NOBLE, petitioner,
vs. ALIPIO ABAJA and NOEL ABELLAR, respondents.
G.R. No. 147145 January 31, 2005
FACTS:
Abada died sometime in May 1940.[4] His widow Paula
Toray ("Toray") died sometime in September 1943. Both
died without legitimate children.
This case is a of the probate of the will of Alipio Abada.
Thereafter, the probate of the will of Paula Toray was also
filed with the court.
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.
Belinda Caponong-Noble was assigned as the administratix
of the estate of Abada by the trial court. Thereafter, Abellar
was appointed administratix of Toray’s property. The RTC
ruled only on 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. Unsatisfied with the decision
Caponong-Noble appealed.
ISSUE:
Whether or not the will of Abada has an attestation clause,
and if so, whether the attestation clause complies with the
requirements of the applicable laws.
RULING:
The Court of Appeals did not err in sustaining the RTC-
Kabankalan in admitting to probate the will of Abada. 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 Procedure 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 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.
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. This is a matter that a party may establish by proof
aliunde. 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. This sufficiently
proves that Abada speaks the Spanish language.
Also, a will, therefore, should not be rejected where its
attestation clause serves the purpose of the law. 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. 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
31. Caneda vs CA (GR No. 103554, May 28, 1993) Josol
*******************************************************************
SECOND DIVISION
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.
FACTS:
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 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.
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.
The probate court found the last will and testament to be in
order.
On appeal to the Court of Appeals (CA), petitioners assert
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. What appears
in the attestation clause is as follows: "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.” The CA found the quoted
clause in order and affirmed the decision of the RTC.
ISSUE:
Whether or not the above attestation clause is in substantial
compliance with the requirements of the Civil Code and
merits the allowance of the wills.
RULING:
NO. Among the requirements of the contents of the
attestation under Article 805 of the Civil Code is that it must
state 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 subscription of the signature of the 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. The attestation clause, therefore, provide
strong legal guaranties for the due execution of a will and to
insure the authenticity thereof. Where it is left unsigned, it
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.
Careful reading of the attestation clause shows that 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.
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.
The rule on substantial compliance in Article 809 cannot be
invoked 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.
32. Sps. Ajero vs CA (GR No. 106720, September 15,
1994) Jueves
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
Vs. THE COURT OF APPEALS AND CLEMENTE SAND,
respondents.
Facts: In the will, decedent named as devisees, the
following: petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah Sand,
Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No.
Q-37171, for allowance of decedent's holographic will.
They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud
or undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testament's body nor the signature therein
was in decedent's handwriting; it contained alterations and
corrections which were not duly signed by decedent; and,
the will was procured by petitioners through improper
pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan
Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its
sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate.
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed.
Issue: Whether or not the Court of Appeals is correct when
in held that the holographic will fails to meet the
requirements for its validity in accordance with Article 813
and 814 of the New Civil Code.
Held: No. In a petition to admit a holographic will to
probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether
the execution of the will and its signing were the voluntary
acts of the decedent.
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said
will. This is erroneous.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806
of the New Civil Code.
In the case of holographic wills, on the other hand, what
assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that
its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated. Such
failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of
Article 814. In the case of Kalaw vs. Relova 132 SCRA 237
242 (1984), this Court held: Ordinarily, when a number of
erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole,
but at most only as respects the particular words erased,
corrected or interlined.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of
the New Civil Code — and not those found in Articles 813
and 814 of the same Code — are essential to the probate
of a holographic will.
33. Velasco vs Lopez (GR No. 905, February 12, 1903)
Jungco
FACTS: The plaintiff is one of the next of kin, and the
defendant the testamentary heir, of Santiago Velasco, who
died in December 4, 1895. The plaintiff seeks a declaration
that Velasco’s will is void on the ground that the hour it was
executed was not stated. The will in question was an open
one, executed before a notary and three witnesses. The
date of the execution of the will is expressed therein in the
following words, viz: "In San Fernando, on the twenty-
second of December, eighteen hundred and ninety-three."
The hour is not stated. It is claimed that this omission
invalidates the will.
ISSUE: Whether or not the will is valid.
RULING:
No. An open will which fails to state the hour of its
execution in addition to the day, month, and year thereof, is
null and void.
Book III, Title III, Chapter I, article 695, of the Civil Code,
provides with reference to open wills as follows: "The
testator shall express his last will to the notary and to the
witnesses. After the testament has been drafted in
accordance with the same, stating the place, year, month,
day, and hour of its execution, it shall be read adoud," etc.
Book III, Title III, Chapter I, article 687, provides that "Any
will, in the execution of which the formalities respectively
established in this chapter have not been observed, shall
be void."
The word "formalities," in the connection in which it is here
used, refers to the mode or form in which the juristic act of
executing a will is to be performed. As respects each one
of the several classes of wills established by the Code,
certain directions are given as to the manner in which the
intention of the testator must be expressed. Article 687,
establishing a sanction to secure the observance of these
rules, provides that if they are not followed, the will shall
have no legal existence. The sanction of article 687 is
general. No exceptions are recognized.
The place where and the time when a juristic act is
performed are often material circumstances in determining
its validity or consequences. Ordinarily the time relation of
the act is sufficiently defined by fixing the year, month, and
day. Article 695 provides that in an open will the time of
execution must be fixed by expressing not only these
details but also the hour. The law thus explicitly defines, as
respects open wills, in what this particular formality shall
consist. Nothing is left to inference, as would be the case,
for example, if the provision were merely that the will
should be dated. There is no room for interpretation.
The observance of all the formalities prescribed for the
execution of a will is essential to its validity.
The observance of all the formalities prescribed for the
execution of a will is essential to its validity.
-------------------------------------------------------------------------------
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34. Roxas vs De Jesus, Jr. (GR No. L-38338, January
28, 1985) Lozano
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.
*principle of substantial compliance – date of
execution of holographic will did not fully state
month/day/year, but still admitted
FACTS:
When spouses Andres G. de Jesus and Bibiana Roxas de
Jesus died, a special proceeding was filed by Simeon R.
Roxas, brother of deceased Bibiana. Simeon was then
appointed administrator of the estate, after which he
delivered to the CFI a document which was supposedly the
holographic will of Bibiana. Thereafter, probate of the
holographic will was set.
Simeon testified that after he was appointed administrator,
he found a notebook which purportedly contained a written
will addressed to her children, and signed in her
handwriting. It stated, “this is my will which I want to be
respected, although it is not written by a lawyer…” This
testimony was corroborated by two of Bibiana’s children,
who recognized their deceased mother’s handwriting. They
also said that their mother understood English, the
language in which the will was written, and that the date
Feb/61 was the date the will was executed by their mother.
Respondent Luz Roxas Henson, another compulsory heir,
filed her opposition to the probate, claiming the will was not
executed according to law, that it was executed through
force and/or duress, undue influence and improper
pressure, and the alleged testatrix did not intend the said
will to be her last will and testament at the time of its
execution.
Judge Colayco initially allowed the probate, but after a
motion for reconsideration by Luz Roxas de Jesus alleging
that the will was not dated as required by Art. 810 of the
Civil Code, the former disallowed the probate on the said
ground. Thus, the petition for certiorari.
ISSUE:
WON the date “Feb./61 which appears on the will is valid
compliance with Art. 810 of the NCC.
HELD:
YES. Art. 810 of the NCC states:
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 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. 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 will should be admitted to probate.
However, the Court had reviewed the records of this case
and found no evidence of bad faith and fraud in its
execution nor was there any substitution of Will and
Testaments. There was 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
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.
Petition granted.
35. Azaola vs Singson (GR No. L-14003, August 6,
1960) Mangub
FEDERICO AZAOLA, petitioner-appellant,vs. CESARIO
SINGSON,
REYES, J.B.L., J.:
Doctrine: The three-witness provision in case of
contested holographic wills is directory, not
mandatory.
FACTS:
Fortunata S. Vda. De Yance died in Quezon City on
September 9, 1957. Petitioner submitted for probate her
holographic will, in which Maria Azaola was made the sole
heir as against the nephew, who is the defendant. Only one
witness, Francisoco Azaola, was presented to testify on the
handwriting of the testatrix. He testified that he had seen it
one month, more or less, before the death of the testatrix, as
it was given to him and his wife; and that it was in the
testatrix’s handwriting. He presented the mortgage, the
special power of the attorney, and the general power of
attorney, and the deeds of sale including an affidavit to
reinforce his
statement. Two residence certificates showing the testatrix’s
signature were also exhibited for comparison purposes.
The probate was opposed on the ground that (1) the
execution of the will was procured by undue and improper
pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually
written either on the 5th or 6th day of August 1957 and not
on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811
of the Civil Code, the proponent must present three
witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being
contested; and because the lone witness presented "did not
prove sufficiently that the body of the will was written in the
handwriting of the testatrix."
Petitioner appealed, urging: first, that he was not bound to
produce more than one witness because the will's
authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three
witnesses to identify the handwriting and signature of a
holographic will, even if its authenticity should be denied by
the adverse party.
ISSUE:
Whether or not Article 811 of the Civil Code is mandatory or
permissive.
RULING:
Article 811 is merely permissive and not mandatory. Since
the authenticity of the will was not contested, petitioner was
not required to produce more than one witness; but even if
the genuineness of the holographic will were contested,
Article 811 cannot be interpreted to require the compulsory
presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of
a holographic will, none being required by law (Art. 810, new
Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond
the control of the proponent. For it is not merely a question
of finding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the
testator" and who can declare "that the will and the signature
are in the handwriting of the testator". There may be no
available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of
Article 811 may thus become impossibility.
This is the reason why the 2nd paragraph of Article 811
allows the court to resort to expert evidence. The law
foresees the possibility that no qualified witness may be
found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will),
and provides for resort to expert evidence to supply the
deficiency.
What the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed
number of witnesses is produced and the court is convinced
by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand,
if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the Court,
in fine, is to exhaust all available lines of inquiry, for the state
is as much interested as the proponent that the true intention
of the testator be carried into effect.
36. Gan vs Yap (GR No. L-12190, August 30, 1958)
Miranda
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-
YAP deceased. FAUSTO E. GAN, petitioner-appellant,
vs.ILDEFONSO YAP, oppositor-appellee.
BENGZON, J.:
FACTS:
On November 20, 1951 Felicidad Esguerra Alto Yap died of
a heart failure, leaving properties in Pulilan, Bulacan, and in
Manila.
On March 17, 1952, Fausto E. Gan, her nephew, initiated
the proceedings in the Manila CFI with a petition for the
probate of a holographic will allegedly executed by the
deceased.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor
executed any testament during her lifetime.
The will was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court
of Felina Esguerra, Primitivo Reyes, Socorro Olarte and
Rosario Gan Jimenez. According to the witnesses, Felicidad
did not want her husband to know about it, but she had made
known to her other relatives that she made a will. The
witnesses’ statements posit that during the confinement of
Felicidad at the U.S.T. Hospital for her last illness, Ildefonso
Yap took the said will from Felina Esguerra, who was
allegedly last entrusted with the will. Ildefonso then returned
the purse to Felina, only to demand it the next day shortly
before the death of Felicidad.
From the oppositor’s (herein respondent) proof, it appears
that after journeying to the United States in 1950, the
couple returned to the country where her heart ailment
recurred. On November 5, 1951, the patient stayed in bed
and did nothing the whole day, her husband and her
personal attendant, constantly at her side. These two
persons swore that Mrs. Felicidad Esguerra Yap made no
will, and could have made no will on that day.
After hearing the parties and considering their evidence,
Judge Ramon R. San Jose refused to probate the alleged
will on account of the discrepancies arising from the facts.
Among these, it is strange that Felicidad made her will
known to so many of her relatives when she wanted to keep
it a secret during her lifetime. There was also no evidence
presented that her niece was her confidant, to allow her to
see and read the will several times. Felicidad would not have
carried it in her purse in the hospital, knowing for one reason
or another that it may be opened by her husband. Also, if it
is true that the husband demanded the purse from Felina
and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the
petitioner being precisely that the will was executed behind
his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to
accept the oppositor’s evidence that Felicidad did not and
could not have executed such holographic will.
ISSUE: May a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who
declare that it was in the handwriting of the testator?
RULING: NO. The execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.
Holographic will, in Articles 810-814 of the New Civil Code,
is a radical departure from the form and solemnities provided
for wills. With regard to holographic wills, no such guaranties
of truth and veracity are demanded, since as stated, they
need no witnesses; provided however, that they are “entirely
written, dated, and signed by the hand of the testator
himself.”
“In the probate of a holographic will” says the NCC, “it shall
be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses
shall be required. In the absence of any such witnesses,
(familiar with decedent’s handwriting) and if the court deem
it necessary, expert testimony may be resorted to.”
The Rules of Court, (Rule 77) approved in 1940 allow proof
(and probate) of a lost or destroyed will by secondary —
evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated
holographic wills, which could not then be validly made in
this case.
As it is universally admitted that the holographic will is
usually done by the testator and by himself alone, to prevent
others from knowing either its execution or its contents, the
law could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether
in the face of the document itself they think the testator wrote
it. Obviously, this they can’t do unless the will itself is
presented to the Court and to them.
The courts will not distribute the property of the
deceased in accordance with his holographic will,
unless they are shown his handwriting and signature.
Taking all the above circumstances together, the Court
concluded that the execution and the contents of a lost
or destroyed holographic will may not be proved by the
bare testimony of witnesses who have seen and/or read
such will.
At this point, before proceeding further, it might be
convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the
first, the only guarantee of authenticity is the handwriting
itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of
the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses
are available to authenticate. In the case of ordinary wills, it
is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be
checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the
testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely
to end themselves to any fraudulent scheme to distort his
wishes. Last but not least, they can not receive anything on
account of the will.
Another fundamental difference cited by the SC: in the case
of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the
testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an
opinion which cannot be tested in court, nor directly
contradicted by the oppositors, because the handwriting
itself is not at hand.
In fine, even if oral testimony were admissible to
establish and probate a lost holographic will, the
evidence submitted by herein petitioner is so tainted
with improbabilities and inconsistencies that it fails to
measure up to that “clear and distinct” proof required
by Rule 77, sec. 6.
37. Rodelas vs Aranza (GR No. L-58509, December 7,
1982) Sandalo
FACTS:
Marcela Rodelas filed a petition with the Court of First
Instance of Rizal for the probate of the holographic will of
Ricardo B. Bonilla and the issuance of letters testamentary
in her favor.
Amparo Aranza Bonilla, et al., opposed the probate of the
said holographic will because aside from contending that
Ricardo B. Bonilla did not leave any will, holographic or
otherwise, executed and attested as required by law, the
alleged hollographic will itself,and not an alleged copy
thereof, must be produced, otherwise it would produce no
effect, as held in Gam v. Yap, 104 Phil. 509. The CFI of
Rizal decided in favor of Amparo Aranza Bonilla and
others.
Marcela Rodelas filed an appeal to the Court of Appeals,
which the appellate court ruled that the dismissal of
appellant's petition is contrary to law and well-settled
jurisprudence. Hence, this present case.
ISSUE:
Whether or not a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy.
RULING:
Yes, the Supreme Court ruled that a holographic will, which
was lost or cannot be found can be proved by means of a
photostatic copy.
In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled
that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said decision, it
says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and
tested before the probate court."
Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then
the authenticity of the handwriting of the deceased can be
determined by the probate court.
38. Kalaw vs Relova (GR No. L-40207, September 28,
1984) Santiago
[G.R. No. L-40207. September 28, 1984.]
ROSA K. KALAW, Petitioner, v. HON. JUDGE
BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, Respondents.
MELENCIO-HERRERA, J.:
FACTS: On September 1, 1971, private respondent
Gregorio K. Kalaw, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition before
the CFI Batangas for the probate of her holographic Will
executed on December 24, 1968.
The holographic Will, as first written, named Rosa K. Kalaw,
a sister of the testatrix as her sole heir. Hence, petitioner
Rosa opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the
Civil Code. Rosa’s position was that the holographic Will, as
first written, should be given effect and probated so that she
could be the sole heir thereunder.
Trial Court: denied probate in an Order as the NBI reported
that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same
person. Consequently, it was the handwriting of the
decedent, Natividad K. Kalaw; the provision of Article 814 of
the Civil Code is applicable to the subject Will; it found that
the insertions, alterations and/or additions therein not to be
authenticated by the full signature of the testatrix Natividad
K. Kalaw.
Respondent Gregorio filed an MR, arguing that since the
alterations and/or insertions were made by the testatrix, the
denial to probate of her holographic Will would be contrary
to her right of testamentary disposition, which was denied.
Petitioner Rosa, on the other hand, filed this Petition for
Review on Certiorari.
ISSUE: WON the ORIGINAL unaltered text after subsequent
alterations and insertions were voided by the Trial Court for
lack of authentication by the full signature of the testatrix,
should be probated or not, with Respondent Rosa as sole
heir.
RULING: No. (Petition was dismissed)
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined.
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked
for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of
mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her
full signature.
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will
itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be
determined with certitude.
39. Dacanay vs Florendo (GR No. L-2071, September
19, 1950) Turno
Facts:
The spouses Isabel V. Florendo and Tirso Dacanay
executed a joint and reciprocal will on October 20, 1940.
Isabel V. Florendo having died, her surviving spouse Tirso
Dacanay is seeking to probate said joint and reciprocal will,
which provides in substance that whoever of the spouses,
joint testators, shall survive the other, shall inherit all the
properties of the latter, with an agreement as to how the
surviving spouse shall dispose of the properties in case of
his or her demise. The relatives of the deceased Isabel V.
Florendo opposed the probate of said will on various
statutory grounds.
After requiring and receiving from counsel for both parties
written arguments on the question of whether or not the said
joint and reciprocal will may be probated in view of article
669 of the Civil Code, the trial court issued an order
dismissing the petition for probate on the ground that said
will is null and void ab initio as having been executed in
violation of article 669 of the Civil Code. From that order the
proponent of the will has appealed.
Appellant appealed, arguing that article 669 of the Civil Code
has been repealed by Act. No. 190, which he claims provides
for and regulates the extrinsic formalities of wills, contending
that whether two wills should be executed conjointly or
separately is but a matter of extrinsic formality.
Issue: WON the joint and reciprocal will executed by the
spouses Isabel Florence and Tirso Dacanay is null and void
ab initio.
Ruling: YES,
Article 669 of the Civil Code reads as follows:
ART. 669. Two or more persons cannot make a will
conjointly or in the same instrument, either for their
reciprocal benefit or for the benefit of a third
person.
The provision of article 669 of the Civil Code prohibiting the
execution of a will by two or more persons conjointly or in the
same instrument either for their reciprocal benefit or for the
benefit of a third person, is not unwise and is not against
public policy. The reason for this provision, especially as
regards husband and wife, is that when a will is made jointly
or in the same instrument, the spouse who is more
aggressive, stronger in will or character and dominant is
liable to dictate the terms of the will for his or her own benefit
or for that of third persons whom he or she desires to favor.
And, where the will is not only joint but reciprocal, either one
of the spouses who may happen to be unscrupulous, wicked,
faithless or desperate, knowing as he or she does the terms
of the will whereby the whole property of the spouses both
conjugal and paraphernal goes to the survivor, may be
tempted to kill or dispose of the other.
Considering the wisdom of the provisions of this article 669
and the fact that it has not been repealed, at least not
expressly, as well as the consideration that its provisions are
not incompatible with those of the Code of Civil Procedure
on the subject of wills, said article 669 of the Civil Code is
still in force.
Lastly, we find that this article 669 has been reproduced
word for word in article 818 of the New Civil Code (Republic
Act No. 386). The implication is that the Philippine
Legislature that passed this Act and approved the New Civil
Code, including the members of the Code Commission who
prepared it, are of the opinion that the provisions of article
669 of the old Civil Code are not incompatible with those of
the Code of Civil Procedure.