CASE DIGESTS - SUCCESSION disposition.
Moreover, the intestate court construction business; and that despite
8. Lee vs RTC of Quezon City (GR No.
146006, February 23, 2004)  annul the unauthorized or fraudulent
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
has the power to execute its order with
regard to the nullity of an unauthorized sale
of estate property, otherwise its power to
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.
9. Macasaet vs Macasaet (GR Nos.
154391-92, September 30, 2004) Atup
G.R. Nos. 154391-92              allegedly given to petitioners as payment
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
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
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 their
contention that one lot had been allotted as
an 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  First ½= divided according to 1/7 share as
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:
legitime
Second ½ 
Estela 49k
Angelina 53k
Bernardita 26k
Josefina 26k "If a testamentary disposition admits of
different interpretations, in case of doubt,
Tomas 65k that interpretation by which the disposition
is to be operative shall be preferred" and
Lilia 36k "The words of a will are to receive an
interpretation which will give to every
Marina 576k expression some effect, rather than one
which will render any of the expressions
Pablo 34k inoperative; and of two modes of
interpreting a will, that is to be preferred
8 grandchildren 36k which will prevent intestacy."  compulsory heirs shall be reduced on
Lower Court approved Marina’s project of Testator’s wish = fixed law
partition This is practical and valid
solution.  The testator's wishes and intention
constitute the first and principal law in the
Basis: Arts. 906 and 907 of NCC provides matter of testaments. When expressed
that when the legitime is impaired or clearly and precisely in his last will amount
prejudiced, the same shall be completed to the only law whose mandate must
and satisfied. imperatively be faithfully obeyed and
complied with by his executors, heirs and
Although both projects of partition tried to devisees and legatees, and neither these
adhere to this, the Counter-project of interested parties nor the courts may
partition will substantially result in a substitute their own criterion for the
distribution intestacy, which is in testator's will.
controversion of Art. 791 adding that “the
testratix has chosen to favor certain heirs Agripina’s will "it is my wish and I
in her will for reasons of her own, cannot command that my property be divided” in
be doubted”. accordance with the disposition
immediately thereafter following. This was
ISSUE: Whether the testamentary a valid partitionof her estate subject only to
dispositions in the will are in the nature of the legitimes. This is contemplated and
devises imputable to the free portion of the authorized par. 1 of Art. 1080:"(S)hould a
estate and therefore subject to reduction?  person make a partition of his estate by an
act inter vivos or by will, such partition shall
HELD: The testamentary disposition made be respected, insofar as it does not
by Agripina was in the nature of partition of prejudice the legitime of the compulsory
her estate by will. heirs."
Articles 788 and 791
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
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.  paid in cash, per the approved project of
"I bequeath" acquire no legal significance,  succession are transmitted from the
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:  mean her orders concerning her legacies.
Oppositors argue that: the purchasing
value of the Philippine peso has greatly
declined since the testatrix' death in
January, 1961  Maria Solla died leaving a will in
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
partition.  The transmission of rights to 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
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
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.  wholly fails to make any provision for his
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.  to recollect the property to be disposed of
 
Counsel for appellant suggests that the
fact that the alleged will leaves all the
property of the testator to his widow, and
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,
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
*************************************************
*************************************************
*********************
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.  agreement and allowing the petitioners to
 
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
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:  undue influence, no evidence was
YES. The Supreme Court overturned the
CA and restated the trial court decision
allowing probate of the will and codicil in
question.  signatures of Eugenia Danila and the three
 
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
presented to prove their occurrence. There
is no question that each and every page of
the will and codicil carry the authentic
(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:  does not depend upon proof of the fact that
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
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  were not introduced, nor was their absence
(GR No. 39209, March 10, 1934)
Note: Ang fulltext ani mura ra ug
digest :)
Topic/Doctrine: Forms of Wills  court; and the execution of the will
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
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
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
(GR No. L-30289, March 26, 1929)
Facts:
Severina Gonzales died and left a will
designating Petitioner Serapia De Gala (De
Gala) as special executrix. Petitioner 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
administratix of the estate. Petitioner
demanded to Respondent Ona, the
surviving husband of Severina 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.
 
Instead, Respondent Ona filed a motion
praying that the appointment of Petitioner
as special admnistratix and that he be
designated in her place. Consequently,
petitioner was removed and Respondent
Ona was designated.
 
The trial court declared the will valid and
ordered that it be admitted for probate.
Petitioner appealed from the order arguing
that she was wrongfully removed as
special administratix and respondents also
appealed from the order probating the will
on the ground that it failed to satisfy the
requirements in Sections 618 of the Code
of Civil procedure.
 
Respondents argued that Serapia, being
requested by the testatrix to sign her
name, failed to put her own name, the
attestation clause does not mention the
placing of the thumbmark of the testratix in
the will and the fact that the testatrix signed
in the presence of the witness was the
stated in the attestation clause but only in
the body of the will.
Issue:
Whether or not the will is valid?
Ruling:  Guevara St., MNL)
YES.
 
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 aforesaid, each and every
page thereof…
 
But this case is different.
Here, testatrix placed her thumb-mark on
the will in the proper places. When the law
says that the will shall be signed by the
testator or testatrix, the law is fulfilled
not only by the customary written
signature but by the 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.
 
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
  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.)
EVANGELISTA "ROSENDA
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:  testator. If that signature is proved,
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
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.  1981 dito sa Lungsod ng Maynila.”
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.  subscribing and attesting witnesses, and
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),
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
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                           The judgment of the Court of First Instance
G. R. No. 39209, March 10, 1934
HIPOLITO ANDALIS, PETITIONER AND
APPELLEE, VS. LUCIA PULGUERAS ET
AL., OPPOSITORS AND APPELLANTS.
DECISION
HULL, J.:  Facts:
=====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.
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
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.  the notarial will) and the notary public who
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
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:  "defective," or "blurred" vision,
1. Was Brigido Alvarado blind for
purpose of Art, 808 at the time
his "Huling Habilin" and its
codicil were executed?  Art. 808.
2. If so, was the double-reading
requirement of said article
complied with?
Ruling:
1. Yes.  testators like Brigido Alvarado, the
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,"
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
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
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.  instrumental witnesses testified that after
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.  After submitting proofs of compliance with
 
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  revisions from Enrique before the final
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.  latter and the attesting witnesses signed it
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.
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
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
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
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.  witnessed and signed the will and all the
Hence, the instant petition.
Issue:
Whether the CA erred in affirming the RTC
decision to disallow the probate of will.  imperfections in the form of attestation or in
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
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
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,  intestate heirs of Abada, namely, Joel,
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.  required by law. The RTC-Kabankalan
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.  ISSUE:
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
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
further held that the failure of the
oppositors to raise any other matter
forecloses all other issues. Unsatisfied with
the decision Caponong-Noble appealed.
 
 
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.  last will. It was declared therein, among
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
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.       actually complied within the execution of
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
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.  the holographic will, but not its probate. If
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 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.
---------------------------------------------------------
---------------------------------------------------------
------------------------------
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:  genuineness of the holographic will and
WON the date “Feb./61 which appears on
the will is valid compliance with Art. 810 of
the NCC.
 
HELD:  holographic Will is fatally defective
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
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
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,  1956 as appears on the will.
 
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,
 
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.