FULL TEXTS – SUCCESSION (Until Wills) Este contrato es intransferible, a menos que para ello se obtenga
elconsentimiento escrito del arrendador. (This contract is
General Provisions (Art 774 to 782, CC)
1. Inocencio vs. Hospicio de San Jose
G.R. No. 201787               September 25, 2013
ANALITA P. INOCENCIO, substituting for RAMON
INOCENCIO (Deceased), Petitioner, vs.
HOSPICIO DE SAN JOSE, Respondent.
DECISION
CARPIO, J.:
The Case
This petition for review seeks to annul and set aside the Decision1 dated
12 January 2012 and the Resolution2 dated 9 May 2012 of the Court of
Appeals (CA) in CA-G.R. SP No. 117009. The Decision dismissed
Analita P. Inocencio’s (Analita) petition for review and affirmed with
modification the Decision3 dated 21 January 2009 of the Regional Trial
Court of Pasay, Branch 119 (RTC-Pasay). The Resolution denied
Analita’s motion for reconsideration.
The Facts
On 1 March 1946, Hospicio de San Jose (HDSJ) leased a parcel of land
located in Pasay City to German Inocencio (German).4 The lease
contract was effective for a period of one year, and was renewed for
one-year periods several times. The last written contract was executed
on 31 May 1951.5 Section 6 of the lease contract provides:
nontransferable unless prior consent of the lessor is obtained in
writing.)6
In 1946, German constructed two buildings on the parcel of land7 which
he subleased. He also designated his son Ramon Inocencio (Ramon)to
administer the said property.8
On 21 September 1990, German received a letter from HDSJ informing
him that the increased rentals shall take effect in November 1990instead
of August 1990, "to give him ample time to make the necessary rental
adjustments with his sublessees."9
German passed away in 1997. Evidence on record shows that Ramon
did not notify HDSJ of German’s death. After German’s passing,
Ramon collected the rentals from the sublessees, and paid the rentals to
HDSJ, and the taxes on the property. On 1 March 2001, HDSJ’s
property administrator, Five Star Multi-Services, Inc., notified Ramon
that HDSJ is terminating the lease contract effective 31 March 2001:
We acknowledge the fact that Hospicio de San Jose has been accepting
the payment of your rentals since the demise of Mr. German Inocencio.
Hence, an implied contract of lease between the two of you exists.
However, since there is no stipulation as to the period of the contract
and you are paying a monthly rental to our client, the period for the
lease is on a month-to-month basis (Art. 1687). Thus as of this date,
your contract should expire on March 31, 2001.10
Ramon then sent a letter to HDSJ dated 12 March 2001, suggesting that
the lease contract be renegotiated for the welfare of the sublessees
occupying the parcel of land.11 On 3 April 2001, HDSJ notified Ramon
that the lease contract shall not be renewed because Ramon has
"continually subleased the subject premises to about 20 families (in
addition to a commercial establishment) x x x without the knowledge
and consent of the essor, [HDSJ]."12 Thereafter, HDSJ refused to accept
Ramon’s tender of payment of rentals.13
On 3 March 2005, HDSJ sent a letter to Ramon: (1) reiterating its stand
that the lease contract was terminated effective 31 March 2001;(2)
demanding payment of ₱756,449.26 as unrealized fruits; and (3) giving
him 30 days to vacate the property.14 The sublessees were given written
notices to vacate within 30 days.15 HDSJ also posted a Patalastas stating
that it is willing to work out an amicable arrangement with the
sublessees, although the latter are not considered as legal occupants or
tenants of the property.16 Because of this, some of the sublessees refused
to pay rentals to Ramon.17
HDSJ also entered into lease contracts with: (1) Harish Chetandas on 25
May 2005;18 (2) Enrique Negare on 12 April 2005;19 (3) Lamberto Estefa
on 25 May 2005;20 and (4) Sofronio Chavez, Jr. on 21 May 2005.21
On 28 June 2005, HDSJ filed a Complaint before Branch 48 of the
Metropolitan Trial Court of Pasay (MeTC-Pasay) for unlawful detainer
against Ramon and his sublessees.22 The complaint alleged that Ramon
and his sublessees have been illegally occupying the leased premises
since 31 March 2001. HDSJ sought the following damages:
17.1 Actual damages, in the amount of Php552,195.36, equivalent to the
reasonable value of the use and occupation of the premises from the
period of 31 March 2001 until the present; and
17.2 Attorney’s fees in the amount of Php50,000.00, for defendants’
refusal to vacate the property and for compelling plaintiff to incur
expenses to protect its interests. Furthermore, it is clear that defendants
acted in gross and evident bad faith in refusing to satisfy plaintiff’s
plainly valid, just, and demandable claim.23
In his Answer dated 1 August 2005,24 Ramon claimed that:
(1) German was the owner of the two buildings constructed on the
leased property as evidenced by the building permits obtained from the
government agencies and the tax declarations covering the buildings;
(2) The Spanish lease contract, which was not translated into English or
Filipino should not be admitted as evidence in view of Section 33 of
Rule 133 of the Rules on Evidence;
(3) HDSJ is estopped from raising the issue of non-transferability of the
lease contract because it admitted in its letter to Ramon that there is an
existing lease agreement between the parties, even after German’s death:
Your Lease Contract with [HDSJ], which is an implied month-to-month
contract, has to be terminate defective March 31, 2001, because by your
own admission, you have continuously subleased the subject premises to
about 20 families including a commercial establishment).This was done
without the knowledge and consent of the lessor, [HDSJ], and is in
violation of the Lease Contract your father signed with them.25 x x x.
(4) There is no prohibition against subleasing in the lease contract. Thus,
under Article 1650 of the Civil Code, Ramon is permitted to sublease
the premises; and
(5) The letters sent by HDSJ to the Inocencios sometime in1990
revealed that the former already knew that the premises were being
subleased.
Ramon also claimed that HDSJ interfered with the contractual relations
between him and his sublessees.26
While the case was being tried before the MeTC-Pasay, Ramon passed
away. In an Order dated 23 August 2006, the MeTC-Pasay allowed the
substitution of Ramon by his wife, Analita.27
The Ruling of the MeTC-Pasay
The MeTC-Pasay ruled in favor of HDSJ. In its Decision dated 22May
2008, the MeTC-Pasay held that the lease contract could not be
transmitted to Ramon as German’s heir in view of the express
stipulation found therein. Since there was "no lease contract between
[HDSJ] and Ramon x x x the latter cannot sublease the property."28 The
dispositive portion of the MeTC-Pasay Decision reads:
Premises considered, judgment is hereby rendered in favor of plaintiff
and against defendant as follows:
1. Ordering defendant Ramon Inocencio, substituted by AnalitaP.
Inocencio, and Felipe Enar, and all persons claiming rights under them
to immediately vacate the premises located at 61-CSta. Escolastica cor.
F.B. Harrison St., Pasay City and to peacefully turn over the same to
plaintiff;
2. Ordering the defendants to pay plaintiff reasonable compensation of
₱552,195.36 for the use and occupation of the property from 01 April
2001 to 31 March 2005, and the amount of ₱10,512.00 a month from 01
April 2005 up to the present, plus twelve per cent 12% interest per
annum until the premises shall have been vacated;
3.Ordering the defendants to pay plaintiff the amount of ₱50,000.00 as
attorney’s fees and costs of suit.29
Aggrieved, Analita filed an appeal before the RTC-Pasay.
The Ruling of the RTC-Pasay
On 21 January 2009, the RTC-Pasay dismissed Analita’s appeal and
affirmed in toto the decision of the MeTC-Pasay.30 It held that "even
before the termination of the contract, [Ramon] had no right to sublease
the said property due to the intransferability clause in the contract."31
Analita moved for reconsideration, but it was denied in an Order dated
25 October 2010.32 Analita then filed a petition for review under Rule 42
of the Rules of Court before the CA.
The Ruling of the CA
The CA affirmed the decision of the RTC-Pasay but modified the award
for damages. The dispositive portion of the Decision reads:
WHEREFORE, foregoing considered, the assailed Decision dated21
January 2009 of the Regional Trial Court, Branch 119, Pasay City is
AFFIRMED with the MODIFICATION that the award for reasonable
compensation in paragraph 2 is pegged at Five Hundred Four Thousand
Five Hundred Seventy Six Pesos (₱504,576.00) representing the
accumulated rentals for the period from 01 April 2001 up to 31
March2005 with six percent (6%) interest per annum, plus the further
amount of Ten Thousand Five Hundred Twelve Pesos (₱10,512.00) per
month from 01 April 2005 until possession is restored to respondent,
also with six percent (6%) interest per annum, up to the finality of this
Decision. Thereafter, the interest shall be twelve percent (12%) until the
amount is fully paid.33
Hence, this petition.
The Issues
The petition questions the following rulings made by the CA:
(1) The sublease contracts were invalid;
(2) There was no tortious interference on the part of HDSJ;
(3) Ramon did not own the buildings erected on the leased
premises;
(4) HDSJ is entitled to reasonable compensation in the amount
of ₱504,576.00 and attorney’s fees; and
(5) HDSJ’s action for unlawful detainer was not barred by
prescription.
The Ruling of this Court
Article 1311 of the Civil Code provides:
Art. 1311. Contracts take effect only between the parties, their assigns
and heirs, except in case where the rights and obligations arising from
the contract are not transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value of the property
he received from the decedent.
xxxx
We have previously ruled that lease contracts, by their nature, are not
personal. The general rule, therefore, is lease contracts survive the death
of the parties and continue to bind the heirs except if the contract states
otherwise.34 In Sui Man Hui Chan v. Court of Appeals,35 we held that:
A lease contract is not essentially personal in character. Thus, the rights
and obligations therein are transmissible to the heirs. The general rule,
therefore, is that heirs are bound by contracts entered into by their
predecessors-in-interest except when the rights and obligations arising
therefrom are not transmissible by (1) their nature, (2) stipulation or (3)
provision of law. In the subject Contract of Lease, not only were there
no stipulations prohibiting any transmission of rights, but its very terms
and conditions explicitly provided for the transmission of the rights of
the lessor and of the lessee to their respective heirs and successors. The
contract is the law between the parties. The death of a party does not
excuse nonperformance of a contract, which involves a property right,
and the rights and obligations thereunder pass to the successors or
representatives of the deceased. Similarly, nonperformance is not
excused by the death of the party when the other party has a property
interest in the subject matter of the contract.
Section 6 of the lease contract provides that "this contract is
nontransferable unless prior consent of the lessor is obtained in
writing."36 Section 6 refers to transfers inter vivos and not transmissions
mortis causa. What Section 6 seeks to avoid is for the lessee to substitute
a third party in place of the lessee without the lessor’s consent. This
merely reiterates what Article 1649 of the Civil Code provides:
Art. 1649. The lessee cannot assign the lease without the consent of the
lessor, unless there is a stipulation to the contrary.
In any case, HDSJ also acknowledged that Ramon is its month-to-month
lessee. Thus, the death of German did not terminate the lease contract
executed with HDSJ, but instead continued with Ramon as the lessee.
HDSJ recognized Ramon as its lessee in a letter dated 1 March 2001:
We acknowledge the fact that Hospicio de San Jose has been accepting
the payment of your rentals since the demise of Mr. [German]
Inocencio. Hence, an implied contract of lease between the two of you
exists. However, since there is no stipulation as to the period of the
contract and you are paying a monthly rental to our client, the period for
the lease is on a month-to-month basis (Art. 1687). Thus as of this date,
your contract should expire on March 31, 2001.37
Section 6 of the lease contract requires written consent of the lessor
before the lease may be assigned or transferred. In Tamio v.
Tecson,38 we explained the nature of an assignment of lease:
In the case of cession or assignment of lease rights on real property,
there is a novation by the substitution of the person of one of the parties
— the lessee. The personality of the lessee, who dissociates from the
lease, disappears; only two persons remain in the juridical relation —
the lessor and the assignee who is converted into the new lessee.39
Assignment or transfer of lease, which is covered by Article 1649 of the
Civil Code, is different from a sublease arrangement, which is governed
by Article 1650 of the same Code. In a sublease, the lessee becomes in
turn a lessor to a sublessee. The sublessee then becomes liable to pay
rentals to the original lessee. However, the juridical relation between the
lessor and lessee is not dissolved. The parties continue to be bound by
the original lease contract. Thus, in a sublease arrangement, there are at
least three parties and two distinct juridical relations.40
Ramon had a right to sublease the premises since the lease contract did
not contain any stipulation forbidding subleasing. Article 1650 of the
Civil Code states:
Art. 1650. When in the contract of lease of things there is no express
prohibition, the lessee may sublet the thing leased, in whole or in part,
without prejudice to his responsibility for the performance of the
contract toward the lessor.
Therefore, we hold that the sublease contracts executed by Ramon were
valid.
We also find that HDSJ did not commit tortious interference.
Article1314 of the Civil Code states:
Art. 1314. Any third person who induces another to violate his contract
shall be liable for damages to the other contracting party.
As correctly pointed out by the Inocencios, tortious interference has the
following elements: (1) existence of a valid contract; (2) knowledge on
the part of the third person of the existence of the contract; and (3)
interference of the third person without legal justification or excuse.41
The facts of the instant case show that there were valid sublease
contracts which were known to HDSJ. However, we find that the third
element is lacking in this case.
In So Ping Bun v. Court of Appeals,42 we held that there was no tortious
interference if the intrusion was impelled by purely economic motives.
In So Ping Bun, we explained that:
Authorities debate on whether interference may be justified where the
defendant acts for the sole purpose of furthering his own financial or
economic interest. One view is that, as a general rule, justification for
interfering with the business relations of another exists where the actor’s
motive is to benefit himself. Such justification does not exist where his
sole motive is to cause harm to the other. Added to this, some authorities
believe that it is not necessary that the interferer’s interest outweighs
that of the party whose rights are invaded, and that an individual acts
under an economic interest that is substantial, not merely de minimis,
such that wrongful and malicious motives are negatived, for he acts in
self- protection. Moreover, justification for protecting one’s financial
position should not be made to depend on a comparison of his economic
interest in the subject matter with that of others. It is sufficient if the
impetus of his conduct lies in a proper business interest rather than in
wrongful motives.43
The evidence shows that HDSJ entered into agreements with Ramon’s
former sublessees for purely economic reasons (payment of rentals).
HDSJ had a right to collect the rentals from the sublessees upon
termination of the lease contract. It does not appear that HDSJ was
motivated by spite or ill will towards the Inocencios.
The Inocencios claim ownership over the buildings since these are
separate and distinct from the land on which they are erected. Thus, as
owners of the buildings, they have a right to lease the buildings to third
persons, even after termination of the lease contract with HDSJ. To
bolster their claim of ownership, the Inocencios presented the following
evidence: (1) the building permit;44
(2) the receipt for the payment of the permit fee;45 (3) the Tax
Declarations; and (4) the proof of payment of insurance.46 The
Inocencios also claimed that:
as the Inocencios owned the Subject Buildings, it is respectfully
submitted, and it should be clear that when they entered into lease
contracts with tenants for the lease of portions of the said buildings,
these contracts were independent contracts of lease over their own
building and not sub-leases of the parcel of land which they leased from
Respondent. It is Respondent’s inaccurate characterization of the leasing
by the Inocencios of portions of their own building that has obfuscated
the legal issues in this case and partially led to the incorrect decisions of
the courts a quo.47
We do not agree. In Duellome v. Gotico48 and Caleon v. Agus
Development Corporation,49
we held that the lease of a building includes the lease of the lot and
consequently, the rentals of the building include the rentals of the lot. As
correctly pointed out by HDSJ in its Comment:50
x x x When the Inocencios leased the buildings to third parties, they also
"leased" to the third parties the plot of land on which the buildings stood
— either by implied transfer of the lease covering the plot of the land, or
by sublease. Either way, x x x the Inocencios themselves must have a
valid lease contract with [HDSJ] over the land. However, when the lease
contract x x x with HDSJ ended on 31March 2001, Ramon lost his status
as lessee of the land, and therefore, had no authority to transfer the lease
or sublease the land. x x x.51
However, we find that the CA erred in not applying Article 1678 of the
Civil Code which provides:
Art. 1678. If the lessee makes, in good faith, useful improvements which
are suitable to the use for which the lease is intended, without altering
the form or substance of the property leased, the lessor upon the
termination of the lease shall pay the lessee one-half of the value of the
improvements at that time. Should the lessor refuse to reimburse said
amount, the lessee may remove the improvements, even though the
principal thing may suffer damage thereby. He shall not, however, cause
any more impairment upon the property leased than is necessary.
With regard to ornamental expenses, the lessee shall not be entitled to
any reimbursement, but he may remove the ornamental objects,
provided no damage is caused to the principal thing, and the lessor does
not choose to retain them by paying their value at the time the lease is
extinguished.
The foregoing provision applies if the improvements were: (1)
introduced in good faith; (2) useful; and (3) suitable to the use for which
the lease is intended, without altering the form and substance.52
We find that the aforementioned requisites are satisfied in this
case.  The buildings were constructed before German’s demise, during
1âwphi1
the subsistence of a valid contract of lease. It does not appear that HDSJ
prohibited German from constructing the buildings. Thus, HDSJ should
have reimbursed German (or his estate) half of the value of the
improvements as of 2001. If HDSJ is not willing to reimburse the
Inocencios, then the latter should be allowed to demolish the buildings.
We also find that the action for unlawful detainer was not barred by
prescription. Section 1, Rule 70 of the Rules of Court provides that
actions for unlawful detainer must be filed "within one (1) year after
such unlawful deprivation or withholding of possession." In interpreting
the foregoing provision, this Court, in Republic v. Sunvar Realty
Development Corporation,53 held that:
The one-year period to file an unlawful detainer case is not counted
from the expiration of the lease contract on 31 December 2002. Indeed,
the last demand for petitioners to vacate is the reckoning period for
determining the one-year period in an action for unlawful detainer.
"Such one year period should be counted from the date of plaintiff’s last
demand on defendant to vacate the real property, because only upon the
lapse of that period does the possession become unlawful."54
HDSJ’s last demand was made on 3 March 2005, and it filed the
complaint for unlawful detainer on 28 June 2005. Thus, the complaint
was filed within the period provided under the Rules of Court.
WHEREFORE, the petition is PARTLY GRANTED. The Decision
dated 12 January 2012 of the Court of Appeals in CA-G.R. SP No.
117009 is AFFIRMED with modification. The case is hereby
REMANDED to the Metropolitan Trial Court of Pasay, Branch 48, for
determination of the value or the improvements to be paid to the
lnocencios, if Hospicio de San Jose desires to keep the improvements.
Otherwise, the Inocencios shall be allowed to demolish the buildings at
their expense.
SO ORDERED.
2. DKC Holdings vs. CA
G.R. No. 118248             April 5, 2000
DKC HOLDINGS CORPORATION,petitioner,
vs.
COURT OF APPEALS, VICTOR U. BARTOLOME and
REGISTER OF DEEDS FOR METRO MANILA, DISTRICT
III, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review on certiorari seeking the reversal of the
December 5, 1994 Decision of the Court of Appeals in CA-G.R. CV No.
40849 entitled "DKC Holdings Corporation vs. Victor U. Bartolome, et
al.", affirming in toto the January 4, 1993 Decision of the Regional Trial
1 
Court of Valenzuela, Branch 172, which dismissed Civil Case No. 3337-
2 
V-90 and ordered petitioner to pay P30,000.00 as attorney's fees.
The subject of the controversy is a 14,021 square meter parcel of land
located in Malinta, Valenzuela, Metro Manila which was originally
owned by private respondent Victor U. Bartolome's deceased mother,
Encarnacion Bartolome, under Transfer Certificate of Title No. B-37615
of the Register of Deeds of Metro Manila, District III. This lot was in
front of one of the textile plants of petitioner and, as such, was seen by
the latter as a potential warehouse site.
On March 16, 1988, petitioner entered into a Contract of Lease with
Option to Buy with Encarnacion Bartolome, whereby petitioner was
given the option to lease or lease with purchase the subject land, which
option must be exercised within a period of two years counted from the
signing of the Contract. In turn, petitioner undertook to pay P3,000.00 a
month as consideration for the reservation of its option. Within the two-
year period, petitioner shall serve formal written notice upon the lessor
Encarnacion Bartolome of its desire to exercise its option. The contract
also provided that in case petitioner chose to lease the property, it may
take actual possession of the premises. In such an event, the lease shall
be for a period of six years, renewable for another six years, and the
monthly rental fee shall be P15,000.00 for the first six years and
P18,000.00 for the next six years, in case of renewal.
Petitioner regularly paid the monthly P3,000.00 provided for by the
Contract to Encarnacion until her death in January 1990. Thereafter,
petitioner coursed its payment to private respondent Victor Bartolome,
being the sole heir of Encarnacion. Victor, however, refused to accept
these payments.
Meanwhile, on January 10, 1990, Victor executed an Affidavit of Self-
Adjudication over all the properties of Encarnacion, including the
subject lot. Accordingly, respondent Register of Deeds cancelled
Transfer Certificate of Title No. B-37615 and issued Transfer Certificate
of Title No. V-14249 in the name of Victor Bartolome.
On March 14, 1990, petitioner served upon Victor, via registered mail,
notice that it was exercising its option to lease the property, tendering
the amount of P15,000.00 as rent for the month of March. Again, Victor
refused to accept the tendered rental fee and to surrender possession of
the property to petitioner.
Petitioner thus opened Savings Account No. 1-04-02558-I-1 with the
China Banking Corporation, Cubao Branch, in the name of Victor
Bartolome and deposited therein the P15,000.00 rental fee for March as
well as P6,000.00 reservation fees for the months of February and
March.
Petitioner also tried to register and annotate the Contract on the title of
Victor to the property. Although respondent Register of Deeds accepted
the required fees, he nevertheless refused to register or annotate the
same or even enter it in the day book or primary register.
1âwphi1.nêt
Thus, on April 23, 1990, petitioner filed a complaint for specific
performance and damages against Victor and the Register of
Deeds, docketed as Civil Case No. 3337-V-90 which was raffled off to
3 
Branch 171 of the Regional Trial Court of Valenzuela. Petitioner prayed FIRST ASSIGNMENT OF ERROR
for the surrender and delivery of possession of the subject land in
accordance with the Contract terms; the surrender of title for registration THE HONORABLE COURT OF APPEALS ERRED IN
and annotation thereon of the Contract; and the payment of P500,000.00 RULING THAT THE PROVISION ON THE NOTICE TO
as actual damages, P500,000.00 as moral damages, P500,000.00 as EXERCISE OPTION WAS NOT TRANSMISSIBLE.
exemplary damages and P300,000.00 as attorney's fees.
(B)
Meanwhile, on May 8, 1990, a Motion for Intervention with Motion to
Dismiss was filed by one Andres Lanozo, who claimed that he was and
4 
SECOND ASSIGNMENT OF ERROR
has been a tenant-tiller of the subject property, which was agricultural
riceland, for forty-five years. He questioned the jurisdiction of the lower
THE HONORABLE COURT OF APPEALS ERRED IN
court over the property and invoked the Comprehensive Agrarian
RULING THAT THE NOTICE OF OPTION MUST BE
Reform Law to protect his rights that would be affected by the dispute
SERVED BY DKC UPON ENCARNACION BARTOLOME
between the original parties to the case.
PERSONALLY.
On May 18, 1990, the lower court issued an Order referring the case to
5 

(C)
the Department of Agrarian Reform for preliminary determination and
certification as to whether it was proper for trial by said court.
THIRD ASSIGNMENT OF ERROR
On July 4, 1990, the lower court issued another Order referring the case
6 

to Branch 172 of the RTC of Valenzuela which was designated to hear THE HONORABLE COURT OF APPEALS ERRED IN
cases involving agrarian land, after the Department of Agrarian Reform RULING THAT THE CONTRACT WAS ONE-SIDED AND
issued a letter-certification stating that referral to it for preliminary ONEROUS IN FAVOR OF DKC.
determination is no longer required.
(D)
On July 16, 1990, the lower court issued an Order denying the Motion to
Intervene, holding that Lanozo's rights may well be ventilated in another
7  FOURTH ASSIGNMENT OF ERROR
proceeding in due time.
THE HONORABLE COURT OF APPEALS ERRED IN
After trial on the merits, the RTC of Valenzuela, Branch 172 rendered RULING THAT THE EXISTENCE OF A REGISTERED
its Decision on January 4, 1993, dismissing the Complaint and ordering TENANCY WAS FATAL TO THE VALIDITY OF THE
petitioner to pay Victor P30,000.00 as attorney's fees. On appeal to the CONTRACT.
CA, the Decision was affirmed in toto.
(E)
Hence, the instant Petition assigning the following errors:
FIFTH ASSIGNMENT OF ERROR
(A)
 THE HONORABLE COURT OF APPEALS ERRED IN
RULING THAT PLAINTIFF-APPELLANT WAS LIABLE
TO DEFENDANT-APPELLEE FOR ATTORNEY'S FEES.
The issue to be resolved in this case is whether or not the Contract of
Lease with Option to Buy entered into by the late Encarnacion
Bartolome with petitioner was terminated upon her death or whether it
binds her sole heir, Victor, even after her demise.
Both the lower court and the Court of Appeals held that the said contract
was terminated upon the death of Encarnacion Bartolome and did not
bind Victor because he was not a party thereto.
Among contracts which are intransmissible are those which are
purely personal, either by provision of law, such as in cases of
8
partnerships and agency, or by the very nature of the obligations
arising therefrom, such as those requiring special personal
qualifications of the obligor. It may also be stated that contracts
for the payment of money debts are not transmitted to the heirs
of a party, but constitute a charge against his estate. Thus,
where the client in a contract for professional services of a
lawyer died, leaving minor heirs, and the lawyer, instead of
presenting his claim for professional services under the contract
to the probate court, substituted the minors as parties for his
client, it was held that the contract could not be enforced
against the minors; the lawyer was limited to a recovery on the
basis of quantum meruit. 9

Art. 1311 of the Civil Code provides, as follows —

In American jurisprudence, "(W)here acts stipulated in a contract require
Art. 1311. Contracts take effect only between the parties, their
the exercise of special knowledge, genius, skill, taste, ability,
assigns and heirs, except in case where the rights and
experience, judgment, discretion, integrity, or other personal
obligations arising from the contract are not transmissible by
qualification of one or both parties, the agreement is of a personal
their nature, or by stipulation or by provision of law. The heir is
nature, and terminates on the death of the party who is required to render
not liable beyond the value of the property he received from the
such service." 10

decedent.
x x x           x x x          x x x
The general rule, therefore, is that heirs are bound by contracts entered
into by their predecessors-in-interest except when the rights and
obligations arising therefrom are not transmissible by (1) their nature,
(2) stipulation or (3) provision of law.
In the case at bar, there is neither contractual stipulation nor legal
It has also been held that a good measure for determining whether a
contract terminates upon the death of one of the parties is whether it is
of such a character that it may be performed by the promissor's personal
representative. Contracts to perform personal acts which cannot be as
well performed by others are discharged by the death of the promissor.
Conversely, where the service or act is of such a character that it may as
well be performed by another, or where the contract, by its terms, shows
that performance by others was contemplated, death does not terminate
the contract or excuse nonperformance.  11

provision making the rights and obligations under the contract

intransmissible. More importantly, the nature of the rights and
obligations therein are, by their nature, transmissible.
The nature of intransmissible rights as explained by Arturo Tolentino,
an eminent civilist, is as follows:
In the case at bar, there is no personal act required from the late
Encarnacion Bartolome. Rather, the obligation of Encarnacion in the
contract to deliver possession of the subject property to petitioner upon
the exercise by the latter of its option to lease the same may very well be
performed by her heir Victor.
As early as 1903, it was held that "(H)e who contracts does so for
himself and his heirs."  In 1952, it was ruled that if the predecessor was
12 
duty-bound to reconvey land to another, and at his death the
reconveyance had not been made, the heirs can be compelled to execute
the proper deed for reconveyance. This was grounded upon the principle
that heirs cannot escape the legal consequence of a transaction entered
into by their predecessor-in-interest because they have inherited the
property subject to the liability affecting their common ancestor. 
13
It is futile for Victor to insist that he is not a party to the contract
because of the clear provision of Article 1311 of the Civil Code. Indeed,
being an heir of Encarnacion, there is privity of interest between him
and his deceased mother. He only succeeds to what rights his mother
had and what is valid and binding against her is also valid and binding
as against him.  This is clear from Parañaque Kings Enterprises
14 
vs.  Court of Appeals,  where this Court rejected a similar defense —
15 
With respect to the contention of respondent Raymundo that he
is not privy to the lease contract, not being the lessor nor the
lessee referred to therein, he could thus not have violated its
provisions, but he is nevertheless a proper party. Clearly, he
stepped into the shoes of the owner-lessor of the land as, by
virtue of his purchase, he assumed all the obligations of the
lessor under the lease contract. Moreover, he received benefits
in the form of rental payments. Furthermore, the complaint, as
well as the petition, prayed for the annulment of the sale of the
properties to him. Both pleadings also alleged collusion
between him and respondent Santos which defeated the exercise
by petitioner of its right of first refusal.
In order then to accord complete relief to petitioner, respondent
Raymundo was a necessary, if not indispensable, party to the
case. A favorable judgment for the petitioner will necessarily
affect the rights of respondent Raymundo as the buyer of the
property over which petitioner would like to assert its right of
first option to buy.
In the case at bar, the subject matter of the contract is likewise a lease,
which is a property right. The death of a party does not excuse
nonperformance of a contract which involves a property right, and the
rights and obligations thereunder pass to the personal representatives of
the deceased. Similarly, nonperformance is not excused by the death of
the party when the other party has a property interest in the subject
matter of the contract.  16
Under both Article 1311 of the Civil Code and jurisprudence, therefore,
Victor is bound by the subject Contract of Lease with Option to Buy.
That being resolved, we now rule on the issue of whether petitioner had
complied with its obligations under the contract and with the requisites
to exercise its option. The payment by petitioner of the reservation fees
during the two-year period within which it had the option to lease or
purchase the property is not disputed. In fact, the payment of such
reservation fees, except those for February and March, 1990 were
admitted by Victor.  This is clear from the transcripts, to wit —
17 
ATTY. MOJADO:
One request, Your Honor. The last payment which was
allegedly made in January 1990 just indicate in that stipulation
that it was issued November of 1989 and postdated January
1990 and then we will admit all.
COURT:
All reservation fee?
ATTY. MOJADO:
Yes, Your Honor.
COURT:
All as part of the lease?
 ATTY. MOJADO: Case No. 3337-V-90 are both SET ASIDE and a new one rendered
ordering private respondent Victor Bartolome to:
Reservation fee, Your Honor. There was no payment with
respect to payment of rentals. 
18
(a) surrender and deliver possession of that parcel of land
covered by Transfer Certificate of Title No. V-14249 by way of
Petitioner also paid the P15,000.00 monthly rental fee on the subject lease to petitioner and to perform all obligations of his
property by depositing the same in China Bank Savings Account No. 1- predecessor-in-interest, Encarnacion Bartolome, under the
04-02558-I-1, in the name of Victor as the sole heir of Encarnacion subject Contract of Lease with Option to Buy;
Bartolome,  for the months of March to July 30, 1990, or a total of five
19 

(5) months, despite the refusal of Victor to turn over the subject (b) surrender and deliver his copy of Transfer Certificate of
property.  20
Title No. V-14249 to respondent Register of Deeds for
registration and annotation thereon of the subject Contract of
Likewise, petitioner complied with its duty to inform the other party of Lease with Option to Buy;
its intention to exercise its option to lease through its letter dated Match
12, 1990,  well within the two-year period for it to exercise its option.
21 
(c) pay costs of suit.
Considering that at that time Encarnacion Bartolome had already passed
away, it was legitimate for petitioner to have addressed its letter to her Respondent Register of Deeds is, accordingly, ordered to register and
heir.
1âwphi1
annotate the subject Contract of Lease with Option to Buy at the back of
Transfer Certificate of Title No. V-14249 upon submission by petitioner
It appears, therefore, that the exercise by petitioner of its option to lease of a copy thereof to his office.
the subject property was made in accordance with the contractual
provisions. Concomitantly, private respondent Victor Bartolome has the SO ORDERED. 1âwphi1.nêt

obligation to surrender possession of and lease the premises to petitioner

for a period of six (6) years, pursuant to the Contract of Lease with
Option to Buy.

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

WHEREFORE, in view of the foregoing, the instant Petition for Review

is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV
No. 40849 and that of the Regional Trial Court of Valenzuela in Civil
Testamentary Succession
A. Willis
 Dy Yieng et al. vs. Hon. Amor A. Reyes
G.R. Nos. 140371-72             November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA
D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO,
ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY
D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari1 with application for the issuance of a
writ of preliminary injunction and/or temporary restraining order
seeking the nullification of the orders, dated August 10, 1999 and
October 14, 1999, of the Regional Trial Court of Manila, Branch 21 (the
RTC), dismissing the petition for probate on the ground of preterition, in
the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP.
Proc. No. 99-93396, and entitled, "In the Matter of the Intestate Estate
of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter
of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio,
Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the
settlement of the intestate estate of the late Segundo Seangio, docketed
as Sp. Proc. No. 98–90870 of the RTC, and praying for the appointment
of private respondent Elisa D. Seangio–Santos as special administrator
and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,
opposed the petition. They contended that: 1) Dy Yieng is still very
healthy and in full command of her faculties; 2) the deceased Segundo
executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business
in the Philippines; 3) Virginia is the most competent and qualified to
serve as the administrator of the estate of Segundo because she is a
certified public accountant; and, 4) Segundo left a holographic will,
dated September 20, 1995, disinheriting one of the private respondents,
Alfredo Seangio, for cause. In view of the purported holographic will,
petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and
replaced by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of
Segundo, docketed as SP. Proc. No. 99–93396, was filed by petitioners
before the RTC. They likewise reiterated that the probate proceedings
should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate
proceedings.2
The document that petitioners refer to as Segundo’s holographic will is
quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging
lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko
at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob
ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit
daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan
para makapagutang na kuarta siya at kanya asawa na si Merna de los
Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na
mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko
at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko
at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila
sa harap ng tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870
and SP. Proc. No. 99–93396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the
probate proceedings5 primarily on the ground that the document
purporting to be the holographic will of Segundo does not contain any
disposition of the estate of the deceased and thus does not meet the
definition of a will under Article 783 of the Civil Code. According to
private respondents, the will only shows an alleged act of disinheritance
by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or
legatee, hence, there is preterition which would result to intestacy. Such
being the case, private respondents maintained that while procedurally
the court is called upon to rule only on the extrinsic validity of the will,
it is not barred from delving into the intrinsic validity of the same, and
ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property
of the decedent.
Petitioners filed their opposition to the motion to dismiss contending
that: 1) generally, the authority of the probate court is limited only to a
determination of the extrinsic validity of the will; 2) private respondents
question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and,
4) the rule on preterition does not apply because Segundo’s will does not
constitute a universal heir or heirs to the exclusion of one or more
compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy
Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs
being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned, Article
854 does not apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise
would amount to an abuse of discretion. The Supreme Court in the case
of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)] has
made its position clear: "for … respondents to have tolerated the probate
of the will and allowed the case to progress when, on its face, the will
appears to be intrinsically void … would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added
futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions
before the extrinsic validity of the will was resolved (underscoring
supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special Proceedings
No. 99–93396 is hereby DISMISSED without pronouncement as to
costs.
SO ORDERED.7
Petitioners’ motion for reconsideration was denied by the RTC in its
order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS,
DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:
I of the Rules of Court which respectively mandate the court to: a) fix the
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF
COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE
FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON
THE ALLEGED GROUND THAT THE TESTATOR’S WILL IS
VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF
PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY
OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS
LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC
VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
THE TESTATOR’S TESTAMENTARY CAPACITY AND THE
COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES
PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE
HAS THE AUTHORITY TO RULE UPON THE INTRINSIC
VALIDITY OF THE WILL OF THE TESTATOR, IT IS
INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH
INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT
IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS TAKE
PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76
time and place for proving the will when all concerned may appear to
contest the allowance thereof, and cause notice of such time and place to
be published three weeks successively previous to the appointed time in
a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir,
but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a compulsory heir. Thus,
there is no preterition in the decedent’s will and the holographic will on
its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and
private respondents alike, with the sole exception of Alfredo, to inherit
his estate. None of the compulsory heirs in the direct line of Segundo
were preterited in the holographic will since there was no institution of
an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic
will that it is both intrinsically and extrinsically valid, respondent judge
was mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will
work injustice to petitioners, and will render nugatory the disinheritance
of Alfredo.
The purported holographic will of Segundo that was presented by
petitioners was dated, signed and written by him in his own handwriting.
Except on the ground of preterition, private respondents did not raise
any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably
showed Segundo’s intention of excluding his eldest son, Alfredo, as an
heir to his estate for the reasons that he cited therein. In effect, Alfredo
was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that
the same must be effected through a will wherein the legal cause
therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the Court
believes that the incidents, taken as a whole, can be considered a form of
maltreatment of Segundo by his son, Alfredo, and that the matter
presents a sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six years
or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery
or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation,
or undue influence causes the testator to make a will or to
change one already made;
(5) A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child
or descendant;8
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty of
civil interdiction.
Now, the critical issue to be determined is whether the document
executed by Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code,
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.
Segundo’s document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic
will prescribed by law. It is written, dated and signed by the hand of
Segundo himself. An intent to dispose mortis causa[9] can be clearly
deduced from the terms of the instrument, and while it does not make an
affirmative disposition of the latter’s property, the disinheritance of
Alfredo, nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of
Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the
testator, expressed in the form and within the limits prescribed by law,
must be recognized as the supreme law in succession. All rules of
construction are designed to ascertain and give effect to that intention. It
is only when the intention of the testator is contrary to law, morals, or
public policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not
learned in the law, as illustrated in the present case, should be construed
more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the
intention of the testator.12 In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was
intended by Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will. Unless the
will is probated,13 the disinheritance cannot be given effect.14
With regard to the issue on preterition,15 the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It was,
in the Court’s opinion, Segundo’s last expression to bequeath his estate
to all his compulsory heirs, with the sole exception of Alfredo. Also,
Segundo did not institute an heir16 to the exclusion of his other
compulsory heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to institute her as
the universal heir. Her name was included plainly as a witness to the
altercation between Segundo and his son, Alfredo. 1âwphi1
Considering that the questioned document is Segundo’s holographic
will, and that the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Article 838 of the Civil Code provides
that no will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court. Thus, unless the will
is probated, the right of a person to dispose of his property may be
rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed
the holographic will to be probated. It is settled that testate proceedings
for the settlement of the estate of the decedent take precedence over
intestate proceedings for the same purpose.18
WHEREFORE, the petition is GRANTED. The Orders of the
Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and
October 14, 1999, are set aside. Respondent judge is directed to reinstate
and hear SP Proc. No. 99-93396 for the allowance of the holographic
will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870
is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.
SO ORDERED.
  Payad vs. Tolentino
G.R. No. 42258           September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO
PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-
appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino,
pending resolution: That of January 29, 1935, praying for the
reconsideration of the decision of the court and that of the same date,
praying for a new trial.
The oppositor bases her motion for reconsideration upon the following
facts relied upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her
alleged will;
2. That the testatrix did not request Attorney Almario to write her name
and surname on the spaces of the will where she should place her
thumbmarks;
3. That the will in question was not signed by the testatrix on the date
indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was
no longer in a physical or mental condition to make it.
We have again reviewed the evidence to determine once more whether
the errors assigned by the oppositor in her brief have not been duly
considered, whether some fact or detail which might have led us to
another conclusion has been overlooked, or whether the conclusions
arrived at in our decision are not supported by the evidence. We have
found that the testatrix Leoncia Tolentino, notwithstanding her advanced
age of 92 years, was in good health until September 1, 1933. She had a
slight cold on said date for which reason she was visited by her
physician, Dr. Florencio Manuel. Said physician again visited her three
or four days later and found her still suffering from said illness but there
was no indication that she had but a few days to live. She ate
comparatively well and conserved her mind and memory at least long
after noon of September 7, 1933. She took her last nourishment of milk
in the morning of the following day, September 8, 1933, and death did
not come to her until 11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario
between 11 and 12 o'clock noon on September 7, 1933, in the house of
the testatrix Leoncia Tolentino, after she had expressed to said attorney
her desire to make a will and bequeath her property to the petitioner
Victorio Payad in compensation according to her, for his diligent and
faithful services rendered to her. Victorio Payad had grown up under the
care of the testatrix who had been in her home from childhood. The will
was written by Attorney Almario in his own handwriting, and was
written in Spanish because he had been instructed to do so by the
testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose
Ferrer Cruz, Perfecto L. Ona and other persons who were then present.
The testatrix approved all the contents of the document and requested
Attorney Almario to write her name where she had to sign by means of
her thumbmark in view of the fact that her fingers no longer had the
necessary strength to hold a pen. She did after having taken the pen and
tried to sign without anybody's help. Attorney Almario proceeded to
write the name of the testatrix on the three pages composing the will and
the testatrix placed her thumbmark on said writing with the help of said
attorney, said help consisting in guiding her thumb in order to place the
mark between her name and surname, after she herself had moistened
the tip of her thumb with which she made such mark, on the ink pad
which was brought to her for said purpose. Said attorney later signed the
three pages of the will in the presence of the testatrix and also of Pedro
L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn,
forthwith signed it successively and exactly under the same
circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on
the will on September 7, 1983, and that she never made said will
because she was no longer physically or mentally in a condition do so,
the oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia,
Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen
Attorney Almario in the morning of September 7, 1933, in the house of
the deceased where they were then living, and that the first time that
they saw him there was at about 12 o'clock noon on September 8th of
said year, when Leoncia Tolentino was already dead, Gliceria Quisonia
stating that on that occasion Almario arrived there accompanied only by
woman named Pacing. They did not state that Almario was
accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona,
the instrumental witnesses of the will. Said two witnesses, however,
could not but admit that their room was situated at the other end of the
rooms occupied by the deceased herself and by the petitioner Victorio
Payad, and that their said room and that of Victorio Payad are separated
by the stairs of the house; that Gliceria Quisonia saw the deceased only
once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in
his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said
month. Gliceria Quisonia further stated that in the morning of
September 7th, she prepared the noonday meal in the kitchen which was
situated under the house. Under such circumstances it is not strange that
the two did not see the testatrix when, according to the evidence for the
petitioner, she made her will and signed it by means of her thumbmark.
In order to be able to see her and also Almario and the instrumental
witnesses of the will, on that occasion, it was necessary for them to enter
the room where the deceased was, or at least the adjoining room where
the will was prepared by Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the
testatrix was already so weak that she could not move and that she could
hardly be understood because she could no longer enunciate, making it
understood thereby, that in such condition it was absolutely impossible
for her to make any will. The attorney for the oppositor insists likewise
and more so because, according to him and his witness Paz de Leon, two
days before the death of the testatrix, or on September 6, 1933, she
could not even open her eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or
discredit the testimony of the petitioner-appellant or that of Attorney
Almario and the three instrumental witnesses of the will because, to
corroborate them, we have of record the testimony of the physician of
the deceased and the accountant Ventura Loreto who are two
disinterested witnesses, inasmuch as the outcome of these proceedings
does not affect them in the least. The two testified that two, three or four
days before the death of the testatrix, they visited her in her home, the
former professionally, and the latter as an acquaintance, and they then
found her not so ill as to be unable to move or hold a conversation. They
stated that she spoke to them intelligently; that she answered all the
questions which they had put to her, and that she could still move in
spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that
the oppositor's motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts:
(1) That upon her death, the deceased left a letter signed by herself,
placed in a stamped envelope and addressed to Teodoro R. Yangco, with
instructions not to open it until after her death; (2) that there are
witnesses competent to testify on the letter in question, in addition to
other evidence discovered later, which could not be presented at the
trial; (3) that in the letter left by the deceased, she transfers all her
property to Teodoro R. Yangco stating therein that, upon her death, all
the property in question should become Yangco's. From this alleged
fact, the oppositor infers that the deceased never had and could not have
had the intention to make the will in question, and (4) that said oppositor
knew of the existence of said letter only after her former attorney,
Alejandro Panis, had been informed thereof in May, 1935, by one of
Teodoro R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the
oppositor filed another supplementary motion alleging that she had
discovered some additional new evidence consisting in the affidavit of
Attorney Gabino Fernando Viola wherein the latter affirms that Victorio
Payad had called him on September 5, 1933, to prepare the will of the
deceased but he did not do so because after seeing her he had been
convinced that she could not make a will because she had lost her
speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola,
substantially affirming the facts alleged by the oppositor, are attached to
both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are
not and cannot be newly discovered evidence, and are not admissible to
warrant the holding of a new trial, because the oppositor had been
informed of the facts affirmed by Attorney Jose Cortes in his affidavit
long before this case was decided by this court. It is stated in said
affidavit that in May, 1935, Attorney Jose Cortes revealed to the
attorney for oppositor the fact that the deceased had left a letter whereby
she transferred all her property to Teodoro R. Yangco, and the judgment
was rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of
said newly discovered evidence inasmuch as the judgment of the lower
court was favorable to her. She, however, overlooks the fact that she
also appealed from the decision of the lower court and it was her duty,
under the circumstances, to inform this court of the discovery of said
allegedly newly discovered evidence and to take advantage of the effects
thereof because, by so doing, she could better support her claim that the
testatrix made no will, much less the will in question. Said evidence, is
not new and is not of the nature of that which gives rise to a new trial
because, under the law, in order that evidence may be considered newly
discovered evidence and may serve as a ground for a new trial, it is
necessary (a) that it could not have been discovered in time, even by the
exercise of due diligence; (b) that it be material, and (c) that it also be of
such a character as probably to change the result if admitted (section
497, Act No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the
sense that, even considering it newly discovered evidence, it will be
sufficient to support the decision of the lower court and modify that of
this court. It is simply hearsay or, at most, corroborative evidence. The
letter of the deceased Leoncia Tolentino to Teodoro R. Yangco would,
in the eyes of the law, be considered important or material evidence but
this court has not the letter in question before it, and no attempt was ever
made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may
give pursuant thereto is not more competent than that of Attorney Jose
Cortes because, granting that when he was called by Victorio Payad to
help the deceased Leoncia Tolentino to make her will and he went to her
house on September 5, 1933, the deceased was almost unconscious, was
unintelligible and could not speak, it does not necessarily mean that on
the day she made her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her to dispose of
all her property. What Attorney Gabino Fernando Viola may testify
pursuant to his affidavit in question is not and can not be newly
discovered evidence of the character provided for by law, not only
because it does not exclude the possibility that testatrix had somewhat
improved in health, which possibility became a reality at the time she
made her will because she was then in the full enjoyment of her mental
faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz,
Perfecto L. Ona, Victorio Payad and Marciano Almario, but also
because during the hearing of these proceedings in the Court of First
Instance, Attorney Viola was present, and the oppositor then could have
very well called him to the witness stand, inasmuch as her attorney
already knew what Attorney Viola was to testify about, yet she did not
call him. The last fact is shown by the following excerpt from pages 148
to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court):
Your Honor, I should like to present as the last witness
 Attorney Fernando Viola who was called by the petitioner
Victoria Payad to prepare the will of the deceased in his favor
on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney
Fernando Viola? — Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness
whom you wish to call to the witness stand? — Mr. PANIS:
Your Honor, he is busy in the branch, presided over by Judge
Sison.
proceedings, it is already too late to claim that what said attorney may
now testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court in the
original decision, and the additional reason that, as held in the case
of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the
ground of newly discovered evidence is limited to ordinary cases
pending in this court on bills of exceptions, the motion for
reconsideration and a new trial filed by the oppositor are hereby denied,
ordering that the record be remanded immediately to the lower court. So
ordered.

COURT: And when can he come? Mr. — PANIS. I am now

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

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

that.

COURT: The court had already assumed beforehand that the

other party would not admit that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call

the witness, Mr. Viola, without prejudice to the other party's
calling the witness it may wish to call.

COURT: The court reserves to the oppositor its right to call

Attorney Viola to the witness stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify
as a witness in her favor, it might have been because she considered his
testimony unimportant and unnecessary, and at the present stage of the
  Garcia vs. Lacuesta
G.R. No. L-4067            November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner, vs.
JULIANA LACUESTA, ET AL., respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing
the will of Antero Mercado dated January 3, 1943. The will is written in
the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing
testament of Antero Mercado was signed by himself and also by us
below his name and of this attestation clause and that of the left margin
of the three pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the
presence of the testator and witnesses, and the witnesses in the presence
of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day
of January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is alleged
to have written a cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will
was signed on all the left margins of the three pages and at the end of the
will by Atty. Florentino Javier at the express request of the testator in
the presence of the testator and each and every one of the witnesses; (2)
to certify that after the signing of the name of the testator by Atty. Javier
at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists
and at the end thereof; (3) to certify that the three witnesses signed the
will in all the pages thereon in the presence of the testator and of each
other.
In our opinion, the attestation clause is fatally defective for failing to
state that Antero Mercado caused Atty. Florentino Javier to write the
testator's name under his express direction, as required by section 618 of
the Code of Civil Procedure. The herein petitioner (who is appealing by
way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written
by the testator after his name is a sufficient signature and the signature
of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the
cross is as much a signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53
Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil.,
429.
It is not here pretended that the cross appearing on the will is the usual
signature of Antero Mercado or even one of the ways by which he
signed his name. After mature reflection, we are not prepared to liken
the mere sign of the cross to a thumbmark, and the reason is obvious.
The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a
sufficient recital in the attestation clause as to the signing of the will by
the testator in the presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.
  Barut vs. Cabacungan
G.R. No. L-6285             February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan
vs. Pedro Barut and another, No. 6284,1 just decided by this court,
wherein there was an application for the probate of an alleged last will
and testament of the same person the probate of whose will is involved
in this suit.
This appeal arises out of an application on the part of Pedro Barut to
probate the last will and testament of Maria Salomon, deceased. It is
alleged in the petition of the probate that Maria Salomon died on the 7th
day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a
last will and testament bearing date March 2, 1907. Severo Agayan,
Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to
have been witnesses to the execution thereof. By the terms of said will
Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano
dialect. Its translation into Spanish appears at page 11. After disposing
of her property the testatrix revoked all former wills by her made. She
also stated in said will that being unable to read or write, the same had
been read to her by Ciriaco Concepcion and Timotea Inoselda and that
she had instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later
will had been executed by the deceased. The will referred to as being a
later will is the one involved in case No. 6284 already referred to.
Proceeding for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by the
court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was
not entitled to probate upon the sole ground that the handwriting of the
person who it is alleged signed the name of the testatrix to the will for
and on her behalf looked more like the handwriting of one of the other
witnesses to the will than that of the person whose handwriting it was
alleged to be. We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the uncontradicted
testimony of all the witnesses to the will that the signature of the
testatrix was written by Severo Agayan at her request and in her
presence and in the presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix provided it is written at
her request and in her presence and in the presence of all the witnesses
to the execution of the will.
The court seems , by inference at least, to have had in mind that under
the law relating to the execution of a will it is necessary that the person
who signs the name of the testatrix must afterwards sign his own name;
and that, in view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her name, being,
from its appearance, not the same handwriting as that constituting the
name of the testatrix, the will is accordingly invalid, such fact indicating
that the person who signed the name of the testatrix failed to sign his
own. We do not believe that this contention can be sustained. Section
618 of the Code of Civil Procedure reads as follows:
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or effect
the same, unless it be in writing and signed by the testator, or by
the testator's name written by some other person in his
presence, and by his expenses direction, and attested and
 subscribed by three or more credible witnesses in the presence
of the testator and of each. . . .
This is the important part of the section under the terms of which the
court holds that the person who signs the name of the testator for him
must also sign his own name The remainder of the section reads:
The attestation shall state the fact that the testator signed the
will, or caused it to be signed by some other person, at his
express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of
attestation shall not render the will invalid if it is proven that the
will was in fact signed and attested as in this section provided.
From these provisions it is entirely clear that, with respect to
the validity  of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing is that
it clearly appears that the name of the testatrix was signed at her express
direction in the presence of three witnesses and that they attested and
subscribed it in her presence and in the presence of each other. That is
all the statute requires. It may be wise as a practical matter that the one
who signs the testator's name signs also his own; but that it is not
essential to the validity of the will. Whether one parson or another
signed the name of the testatrix in this case is absolutely unimportant so
far as the validity of her will is concerned. The plain wording of the
statute shows that the requirement laid down by the trial court, if it did
lay down, is absolutely unnecessary under the law; and the reasons
underlying the provisions of the statute relating to the execution of wills
do not in any sense require such a provision. From the standpoint of
language it is an impossibility to draw from the words of the law the
inference that the persons who signs the name of the testator must sign
his own name also. The law requires only three witnesses to a will, not
four.
Nor is such requirement found in any other branch of the law. The name
of a person who is unable to write may be signed by another by express
direction to any instrument known to the law. There is no necessity
whatever, so far as the validity of the instrument is concerned, for the
person who writes the name of the principal in the document to sign his
own name also. As a matter of policy it may be wise that he do so
inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it is
unnecessary. The main thing to be established in the execution of the
will is the signature of the testator. If that signature is proved, whether it
be written by himself or by another at his request, it is none the less
valid, and the fact of such signature can be proved as perfectly and as
completely when the person signing for the principal omits to sign his
own name as it can when he actually signs. To hold a will invalid for the
lack of the signature of the person signing the name of the principal is,
in the particular case, a complete abrogation of the law of wills, as it
rejects and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to
the doctrine which we have herein laid down. They are Ex
parte Santiago (4 Phil. Rep., 692), Ex parte  Arcenas (4 Phil. Rep., 700),
and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is
in point. The headnote in the case last above stated gives an indication
of what all of cases are and the question involved in each one of them. It
says:
The testatrix was not able to sign it for her. Instead of writing
her name he wrote his own upon the will. Held, That the will
was not duly executed.
All of the above cases are precisely of this character. Every one of them
was a case in which the person who signed the will for the testator wrote
his own name to the will instead of writing that of the testator, so that
the testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte  Arcenas contains the following
paragraph:
Where a testator does not know, or is unable for any reason, to
sign the will himself, it shall be signed in the following manner:
"John Doe, by the testator, Richard Roe;" or in this form: "By
 the testator. John Doe, Richard Roe." All this must be written
by the witness signing at the request of the testator.

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

Aside from the presentation of an alleged subsequent will the

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

The judgment of the probate court must be and is hereby reversed and
that court is directed to enter an order in the usual form probating the
will involved in this litigation and to proceed with such probate in
accordance with law.
  Icasiano vs. Icasiano
G.R. No. L-18979             June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE
JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting
to probate the document and its duplicate, marked as Exhibits "A" and
"A-1", as the true last will and testament of Josefa Villacorte, deceased,
and appointing as executor Celso Icasiano, the person named therein as
such.
This special proceeding was begun on October 2, 1958 by a petition for
the allowance and admission to probate of the original, Exhibit "A" as
the alleged will of Josefa Villacorte, deceased, and for the appointment
of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks,
previous to the time appointed, in the newspaper "Manila chronicle",
and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
filed her opposition; and on November 10, 1958, she petitioned to have
herself appointed as a special administrator, to which proponent
objected. Hence, on November 18, 1958, the court issued an order
appointing the Philippine Trust Company as special administrator.  1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed
a manifestation adopting as his own Natividad's opposition to the
probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion for
the admission of an amended and supplemental petition, alleging that
the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the admission
of the amended and supplemental petition, but by order of July 20, 1959,
the court admitted said petition, and on July 30, 1959, oppositor
Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court
issued the order admitting the will and its duplicate to probate. From this
order, the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same is
contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa Icasiano
at Pedro Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose
V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged
by the testatrix and by the said three instrumental witnesses on the same
date before attorney Jose Oyengco Ong, Notary Public in and for the
City of Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and signing
of the decedent's last will and testament, together with former Governor
Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the
said three instrumental witnesses to the execution of the decedent's last
will and testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to the due
execution and authenticity of the said will. So did the Notary Public
before whom the will was acknowledged by the testatrix and attesting
witnesses, and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and
testament at his house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty.
Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as
Exhibit "A-1" is signed by the testatrix and her three attesting witnesses
in each and every page.
The testimony presented by the proponents of the will tends to show that
the original of the will and its duplicate were subscribed at the end and
on the left margin of each and every page thereof by the testatrix herself
and attested and subscribed by the three mentioned witnesses in the
testatrix's presence and in that of one another as witnesses (except for
the missing signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said will were duly
numbered; that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the aforesaid
attesting witnesses; that the will is written in the language known to and
spoken by the testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was executed on
one single occasion in duplicate copies; and that both the original and
the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of
the original, admits that he may have lifted two pages instead of one
when he signed the same, but affirmed that page three (3) was signed in
his presence.
Oppositors-appellants in turn introduced expert testimony to the effect
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine,
they were executed through mistake and with undue influence and
pressure because the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to benefit from the
provisions of the will, as may be inferred from the facts and
circumstances surrounding the execution of the will and the provisions
and dispositions thereof, whereby proponents-appellees stand to profit
from properties held by them as attorneys-in-fact of the deceased and
not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and
not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court was,
that the testatrix signed both original and duplicate copies (Exhibits "A"
and "A-1", respectively) of the will spontaneously, on the same in the
presence of the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of
the testatrix appearing in the duplicate original were not written by the
same had which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the paucity
of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond
the writer's range of normal scriptural variation. The expert has, in fact,
used as standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel that
with so few standards the expert's opinion and the signatures in the
duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and
4 fail to show convincingly that the are radical differences that would
justify the charge of forgery, taking into account the advanced age of the
testatrix, the evident variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable, considering
the standard and challenged writings were affixed to different kinds of
paper, with different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's expert
sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy being in the United States
during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact
that some heirs are more favored than others is proof of neither (see In
re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs.
Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason
for making a testament; otherwise, the decedent might as well die
intestate. The testamentary dispositions that the heirs should not inquire
into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not
suffice to prove fraud or undue influence. They appear motivated by the
desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted
into the hands of non-heirs and speculators. Whether these clauses are
valid or not is a matter to be litigated on another occassion. It is also
well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually
repugnant and exclude each other; their joining as grounds for opposing
probate shows absence of definite evidence against the validity of the
will.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of
this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee
the identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence
on record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at
1479 (decision on reconsideration) "witnesses may sabotage the will by
muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in
every page. The text of the attestation clause and the acknowledgment
before the Notary Public likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court departs from a strict and
literal application of the statutory requirements, where the purposes of
the law are otherwise satisfied. Thus, despite the literal tenor of the law,
this Court has held that a testament, with the only page signed at its foot
by testator and witnesses, but not in the left margin, could nevertheless
be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure
to make the first page either by letters or numbers is not a fatal defect
(Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked one
signature in its third page, it is easily discerned that oppositors-
appellants run here into a dilemma; if the original is defective and
invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid
and can be probated, then the objection to the signed duplicate need not
be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent and
not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the probate
court, already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any substantial
right, and we see no error in admitting the amended petition. IN VIEW
OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.
  In re: Will of Andrada
G.R. No. 16008           September 29, 1921
IN RE WILL OF THE DECEASED LUCINA ANDRADA,
LUCILA ARCE, petitioner-appellant.
STREET, J.:
Lucina Andrada died on June 5, 19919, in the Municipality of Capiz,
Province of Capiz; and soon thereafter a petition was presented to the
Cour of First Instance of Capiz by Lucila Arce to establish a document
purporting to be the last will and testament of the deceased. Upon
hearing the petition, his Honor, Judge Antonio Villareal, declared that
the document in question had not been executed in conformity with the
requirements of section 618 of the Coe of Civil Procedure, as amended
by Act No. 2645 of the Philippine Legislature. He therefore refused to
admit the purported will to probate, and the petitioner appealed.
The attesting clause of the will in question is incorporated in the will
itself, constituting the last paragraph thereof; and its defect consists in
the fact that it does not state the number of sheets or pages upon which
the will is written, though it does state that the testatrix and the
instrumental witnesses signed on every page, as is in fact obvious from
an inspection of the instrument. Each of the pages moreover bears
successively the Visayan words, "isa," "duha," "tatlo," "apat," "lima,"
which mean respectively "one," "two," "three," "four," "five," Visayan
being the dialect in which the instrument is written.
By section 618 of the Code of Civil Procedure, as amended by Act No.
2645, it is required that each and every page of the will shall be
numbered correlatively in letters and that the attesting clause shall state
the number of sheets or pages used.
Without decising in this case whether the will in question is rendered
invalid by reason of the manner in which the pages are numbered, the
court is unanimous upon the point that the defect pointed out in the
attesting clause is fatal. The law plainly says that the attestation shall
state the number of sheets or pages used, the eident purpose being to
safeguard the document from the possiblity of the interpolation of
additional pages or the omission of some of the pages actually used. It is
true that this point is also safeguarded by the other two requirements that
the pages shall be consecutively lettered and that each page shall be
singed on the left margin by the testator and the witnesses. In light of
these requirements it is really difficult to see any practical necessity for
the additional requirement that the attesting clause shall state the number
of sheets or pages used. Nevertheless, it cannot be denied that the last
mentioned requirement affords additional secuirty against the danger
that the will may be tampered with; and as the Legislature has seen fit to
prescribe this requirement, it must be considered material.
In two cases we have held that the failure to comply with the strict
requirements of this law does not invalidate the instrument, but the
irregularities presented in those cases were entirely rivial, the defect in
one case being that a willin which the dispositive part consisted of a
single sheet was not signed in the margin in addition to being signed at
the bottom (In re will of Abangan, 40 Phil., 476); in the others, that the
pages comprising the body of the will were signed by the testator and
witnesses on the right margin instead of the left (Avera vs. Garcia and
Rodriguez, p. 145, ante). In the case now before us the defect is, in our
opinion, of more significance; and the rule here applicable is that
enunciated in Caraig vs. Tatlonghari, R.G. No. 12558, decided March
23, 1918, not reported, and (In re estate of Saguinsim, 41 Phil., 875), in
each of which the will was held to be invalid.
It results that the trial judge did not err in refusing probate of the will,
and the judgment must be affirmed. It is so ordered, with costs against
the appellant.
Johnson, Araullo, Avanceña and Villamor, JJ., concur.
  Cagro vs. Cagro
G.R. No. L-5826             April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the
Court of First Instance of Samar, admitting to probate the will allegedly
executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on
February 14, 1949.
The main objection insisted upon by the appellant in that the will is
fatally defective, because its attestation clause is not signed by the
attesting witnesses. There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is 'a memorandum of the facts attending the
execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages.
If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to
a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will
in question denied. So ordered with costs against the petitioner and
appellee.
Separate pinions
BAUTISTA ANGELO, J.,  dissenting:
I dissent. In my opinion the will in question has substantially complied
with the formalities of the law and, therefore, should be admitted to
probate . It appears that the will was signed by the testator and was
attested by three instrumental witnesses, not only at the bottom, but also
on the left-hand margin. The witnesses testified not only that the will
was signed by the testator in their presence and in the presence of each
other but also that when they did so, the attestation clause was already
written thereon. Their testimony has not been contradicted. The only
objection set up by the oppositors to the validity of the will is the fact
that the signatures of the instrumental witnesses do not appear
immediately after the attestation clause.
This objection is too technical to be entertained. In the case of
Abangan vs. Abangan, (40 Phil., 476), this court said that when the
testamentary dispositions "are wholly written on only one sheet signed
at the bottom by the testator and three witnesses (as the instant
case),their signatures on the left margin of said sheet would be
completely purposeless." In such a case, the court said, the requirement
of the signatures on the left hand margin was not necessary because the
purpose of the law — which is to avoid the substitution of any of the
sheets of the will, thereby changing the testator's dispositions — has
already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental
witnesses did not sign immediately by the majority that it may have
been only added on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation clause was The only answers, in our humble opinion, is yes. The law on wills does
already written in the will when the same was signed. not provide that the attesting witness should sign the clause at the
bottom. In the absence of such provision, there is no reason why
The following observation made by this court in the Abangan case is signatures on the margin are not good. A letter is not any the less the
very fitting: writter's simply because it was signed, not at the conventional place but
on the side or on top.
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it
i not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already
given assures such ends, any other interpretation already given
assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecessary
useless and frustrative of the testator's last will, must be
disregarded. (supra)

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

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

to probate.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that
the majority decision erroneously sets down as a fact that the attestation
clause was no signed when the witnesses signatures appear on the left
margin and the real and only question is whether such signatures are
legally sufficient.
  Javellana vs. Ledesma
G.R. No. L-7179             June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted
to probate the documents in the Visayan dialect, marked Exhibits D and
E, as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29,
1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana
and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma,
sister and nearest surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed in conformity
with law. The appeal was made directly to this Court because the value
of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the hearing
in the court below, where the issue was concentrated into three specific
questions: (1) whether the testament of 1950 was executed by the
testatrix in the presence of the instrumental witnesses; (2) whether the
acknowledgment clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and ineffective.
These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to
her witnesses Maria Paderogao and Vidal Allado, cook and driver,
respectively, of the deceased Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente Yap (one of the witnesses
to the will) inform the deceased that he had brought the "testamento"
and urge her to go to attorney Tabiana's office to sign it; that Da.
Apolinaria manifested that she could not go, because she was not feeling
well; and that upon Yap's insistence that the will had to be signed in the
attorney's office and not elsewhere, the deceased took the paper and
signed it in the presence of Yap alone, and returned it with the statement
that no one would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no grounds for
reversing the trial Court's rejection of the improbable story of the
witnesses. It is squarely contradicted by the concordant testimony of the
instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife
Gloria Montinola, who asserted under oath that the testament was
executed by testatrix and witnesses in the presence of each other, at the
house of the decedent on General Hughes St., Iloilo City, on March 30,
1950. And it is highly unlikely, and contrary to usage, that either
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady
then over 80 years old, should leave her own house in order to execute
her will, when all three witnesses could have easily repaired thither for
the purpose. Moreover, the cross-examination has revealed fatal flaws in
the testimony of Contestant's witnesses. Both claim to have heard the
word "testamento" for the first time when Yap used it; and they claimed
ability to recall that word four years later, despite the fact that the term
meant nothing to either. It is well known that what is to be remembered
must first be rationally conceived and assimilated (II Moore on Facts, p.
884). Likewise, Maria Paderogao was positive that Yap brought the will,
and that the deceased alone signed it, precisely on March 30, 1950; but
she could remember no other date, nor give satisfactory explanation why
that particular day stuck in her mind. Worse still, Allado claimed to have
heard what allegedly transpired between Yap and Da. Apolinaria from
the kitchen of the house, that was later proved to have been separated
from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the
kitchen. Later, on redirect examination, Allado sought to cure his
testimony by claiming that he was upstairs in a room where the servants
used to eat when he heard Yap converse with his mistress; but this
correction is unavailing, since it was plainly induced by two highly
leading questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the
instrumental witnesses urged upon us by the contestant-appellant,
concerning the presence or absence of Aurelio Montinola at the signing
of the testament or of the codicil, and the identity of the person who
inserted the date therein, are not material and are largely imaginary,
since the witness Mrs. Tabiana confessed inability to remember all the
details of the transaction. Neither are we impressed by the argument that
the use of some Spanish terms in the codicil and testament (like legado,
partes iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are
of common use even in the vernacular, and that the deceased was a
woman of wide business interests.
The most important variation noted by the contestants concerns that
signing of the certificate of acknowledgment (in Spanish) appended to
the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
executed after the enactment of the new Civil Code, and, therefore, had
to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested
the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was
signed and sealed by notary public Gimotea on the same occasion. On
the other hand, Gimotea affirmed that he did not do so, but brought the
codicil to his office, and signed and sealed it there. The variance does
not necessarily imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established phenomenon, the
tendency of the mind, in recalling past events, to substitute the usual and
habitual for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary
signed the certification of acknowledgment in the presence of the
testatrix and the witnesses, does not affect the validity of the codicil.
Unlike the Code of 1889 (Art. 699), the new Civil Code does not require
that the signing of the testator, witnesses and notary should be
accomplished in one single act. A comparison of Articles 805 and 806
of the new Civil Code reveals that while testator and witnesses sign in
the presence of each other,  all that is thereafter required is that "every
will must be acknowledged before a notary public by the testator and the
witnesses" (Art. 806); i.e., that the latter should avow to the certifying
officer the authenticity of their signatures and the voluntariness of their
actions in executing the testamentary disposition. This was done in the
case before us. The subsequent signing and sealing by the notary of his
certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the
testamentary act. Hence their separate execution out of the presence of
the testatrix and her witnesses can not be said to violate the rule that
testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts
it, "uno codem die ac tempore in eadem loco", and no reversible error
was committed by the Court in so holding. It is noteworthy that Article
806 of the new Civil Code does not contain words requiring that the
testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
  Cruz vs. Villasor
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance
of Cebu allowing the probate of the last will a testament of the late
Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving
spouse of the said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said instrument was
execute without the testator having been fully informed of the content
thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with
law. Notwithstanding her objection, the Court allowed the probate of the
said last will and testament Hence this appeal by certiorari which was
given due course.
The only question presented for determination, on which the decision of
the case hinges, is whether the supposed last will and testament of
Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the
will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T.
Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one
of them, the last named, is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three
credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On
the other hand, private respondent-appellee, Manuel B. Lugay, who is
the supposed executor of the will, following the reasoning of the trial
court, maintains that there is substantial compliance with the legal
requirement of having at least three attesting witnesses even if the
notary public acted as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as pertinent, reads as
follows:
It is said that there are, practical reasons for upholding
a will as against the purely technical reason that one of
the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public
before whom the will was acknowledged cannot be considered as the
third instrumental witness since he cannot acknowledge before himself
his having signed the will. To acknowledge before means to avow
(Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil.
239, 247); to own as genuine, to assent, to admit; and "before" means in
front or preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72; Funk &
Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.) Consequently, if the
third witness were the notary public himself, he would have to avow
assent, or admit his having signed the will in front of himself. This
cannot be done because he cannot split his personality into two so that
one will appear before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard acknowledge the will. The result would be, as has been said, that only
against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G. two witnesses appeared before the notary public for or that purpose. In
583.) That function would defeated if the notary public were one of the the circumstances, the law would not be duly in observed.
attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the FOR ALL THE FOREGOING, the judgment appealed from is hereby
validity of his own act. It would place him in inconsistent position and reversed and the probate of the last will and testament of Valente Z.
the very purpose of acknowledgment, which is to minimize fraud Cruz (Exhibit "E") is declared not valid and hereby set aside.
(Report of Code Commission p. 106-107), would be thwarted.
Cost against the appellee.
Admittedly, there are American precedents holding that notary public
may, in addition, act as a witness to the executive of the document he
has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA
482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N.
Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122
So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A.
721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are
not decisive of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. He
the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:

ART. 806. Every will must be acknowledged before a

notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will or file another with the office of the Clerk of
Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting
and acknowledging witnesses, would have the effect of having only two
attesting witnesses to the will which would be in contravention of the
provisions of Article 80 be requiring at least three credible witnesses to
act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to
 Yap Tua vs. Yap Ka Kuan before her death she had executed a last will and testament; that he was
present at the time said last will was executed; that there were also
G.R. No. 6845           September 1, 1914 present Timoteo Paez and Severo Tabora and a person called Anselmo;
that the said Tomasa Elizaga Yap Caong signed the will in the presence
YAP TUA, petitioner-appellee, of the witnesses; that he had seen her sign the will with his own eyes;
vs. that the witnesses had signed the will in the presence of the said Tomasa
YAP CA KUAN and YAP CA KUAN, objectors-appellants. Elizaga Yap Caong and in the presence of each other; that the said
Tomasa Elizaga Yap Caong signed the will voluntarily, and in his
judgment, she was in the possession of her faculties; that there were no
Chicote and Miranda for appellants.
threats or intimidation used to induce her to sign the will; that she signed
O'Brien and DeWitt for appellee.
it voluntarily.
JOHNSON, J.:
No further witnesses were called and there was no further opposition
presented to the legalization of the said will.
It appears from the record that on the 23d day of August, 1909, one
Perfecto Gabriel, representing the petitioner, Yap Tua, presented a
After hearing the foregoing witnesses, the Honorable A. S. Crossfield,
petition in the Court of First Instance of the city of Manila, asking that
judge, on the 29th day of September, 1909, ordered that the last will and
the will of Tomasa Elizaga Yap Caong be admitted to probate, as the
testament of Tomasa Elizaga Yap Caong be allowed and admitted to
last will and testament of Tomasa Elizaga Yap Caong, deceased. It
probate. The will was attached to the record and marked Exhibit A. The
appears that the said Tomasa Elizaga Yap Caong died in the city of
court further ordered that one Yap Tua be appointed as executor of the
Manila on the 11th day of August, 1909. Accompanying said petition
will, upon the giving of a bond, the amount of which was to be fixed
and attached thereto was the alleged will of the deceased. It appears that
later.
the will was signed by the deceased, as well as Anselmo Zacarias,
Severo Tabora, and Timoteo Paez.
From the record it appears that no further proceedings were had until the
28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared
Said petition, after due notice was given, was brought on for hearing on
and presented a petition, alleging that they were interested in the matters
the 18th day of September, 1909. Timoteo Paez declared that he was 48
of the said will and desired to intervene and asked that a guardian ad
years of age; that he had known the said Tomasa Elizaga Yap Caong;
litem  be appointed to represent them in the cause.
that she had died on the 11th day of August, 1909; that before her death
she had executed a last will and testament; that he was present at the
time of the execution of the same; that he had signed the will as a On the 1st day of March, 1910, the court appointed Gabriel La O as
witness; that Anselmo Zacarias and Severo Tabora had also signed said guardian ad litem  of said parties. Gabriel La O accepted said
will as witnesses and that they had signed the will in the presence of the appointment, took the oath of office and entered upon the performance
deceased. of his duties as guardian ad litem  of said parties. On the 2d day of
March, 1910, the said Gabriel La O appeared in court and presented a
motion in which he alleged, in substance:
Pablo Agustin also declared as a witness and said that he was 40 years
of age; that he knew Tomasa Elizaga Yap Caong during her lifetime;
that she died on the 11th day of August, 1909, in the city of Manila; that
First. That the will dated the 11th day of August, 1909, and admitted to
probate by order of the court on the 29th day of September, 1909, was
null, for the following reasons:
(a) Because the same had not been authorized nor signed by the
witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said
Tomasa Elizaga Yap Caong was not then mentally capacitated
to execute the same, due to her sickness.
(c) Because her signature to the will had been obtained through
fraud and illegal influence upon the part of persons who were to
receive a benefit from the same, and because the said Tomasa
Elizaga Yap Caong had no intention of executing the same.
Second. That before the execution of the said will, which they alleged to
be null, the said Tomasa Elizaga Yap Caong had executed another will,
with all the formalities required by law, upon the 6th day of August,
1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that,
even though they had been negligent in presenting their opposition to
the legalization of the will, said negligence was excusable, on account of
their age.
Upon the foregoing facts the court was requested to annul and set aside
the order of the 29th day of September, 1909, and to grant to said minors
an opportunity to present new proof relating to the due execution of said
will. Said petition was based upon the provisions of section 113 of the
Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their
petition for a new trial, attached to said petition the alleged will of
August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the
affidavits of Severo Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for
a rehearing, the Honorable A. S. Crossfield, judge, granted said motion
and ordered that the rehearing should take place upon the 18th day of
March, 1910, and directed that notice should be given to the petitioners
of said rehearing and to all other persons interested in the will. At the
rehearing a number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial
was requested was that the deceased, Tomasa Elizaga Yap Caong, had
not signed the will (Exhibit A) of the 11th of August, 1909; that in
support of that allegation, the protestants, during the rehearing,
presented a witness called Tomas Puzon. Puzon testified that he was a
professor and an expert in handwriting, and upon being shown the will
(of August 11, 1909) Exhibit A, testified that the name and surname on
Exhibit A, in his judgment were written by two different hands, though
the given name is the same as that upon Exhibit 1 (the will of August 6,
1909), because he found in the name "Tomasa" on Exhibit A a similarity
in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname
on Exhibit A with the surname on Exhibit 1 he found that the character
of the writing was thoroughly distinguished and different by the tracing
and by the direction of the letters in the said two exhibits; that from his
experience and observation he believed that the name "Tomasa" and
"Yap Caong," appearing in the signature on Exhibit A were written by
different person.
Puzon, being cross-examined with reference to his capacity as an expert
in handwriting, testified that while he was a student in the Ateneo de
Manila, he had studied penmanship; that he could not tell exactly when
that was, except that he had concluded his course in the year 1882; that
since that time he had been a telegraph operator for seventeen years and
that he had acted as an expert in hand- writing in the courts in the
provinces.
Gabriel La O was called as a witness during the rehearing and testified
that he had drawn the will of the 6th of August, 1909, at the request of
Tomasa Elizaga Yap Caong; that it was drawn in accordance with her
request and under her directions; that she had signed it; that the same
had been signed by three witnesses in her presence and in the presence
of each other; that the will was written in her house; that she was sick
and was lying in her bed, but that she sat up to sign the will; that she
signed the will with great difficulty; that she was signed in her right
mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong during
her lifetime; that she was dead; that his signature as a witness to Exhibit
A (the will of August 11, 1909) was placed there by him; that the
deceased, Tomasa Elizaga Yap Caong, became familiar with the
contents of the will because she signed it before he (the witness) did;
that he did not know whether anybody there told her to sign the will or
not; that he signed two bills; that he did not know La O; that he did not
believe that Tomasa had signed the will (Exhibit A) before he arrived at
the house; that he was not sure that he had seen Tomasa Elizaga Yap
Caong sign Exhibit A because there were many people and there was a
screen at the door and he could not see; that he was called a a witness to
sign the second will and was told by the people there that it was the
same as the first; that the will (Exhibit A) was on a table, far from the
patient, in the house but outside the room where the patient was; that the
will was signed by Paez and himself; that Anselmo Zacarias was there;
that he was not sure whether Anselmo Zacarias signed the will or not;
that he was not sure whether Tomasa Elizaga Yap Caong could see the
table on which the will was written at the time it was signed or not; that
there were many people in the house; that he remembered the names of
Pedro and Lorenzo; that he could not remember the names of any others;
that the will remained on the table after he signed it; that after he signed
the will he went to the room where Tomasa was lying; that the will was
left on the table outside; that Tomasa was very ill; that he heard the
people asking Tomasa to sign the will after he was (the witness) had
signed it; that he saw Paez sign the will, that he could not remember
whether Anselmo Zacarias had signed the will, because immediately
after he and Paez signed it, he left because he was hungry; that the place
where the table was located was in the same house, on the floor, about
two steps down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting
the allegation that Tomasa Elizaga Yap Caong was mentally
incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa
declared that he was a physician; that he knew Tomasa Elizaga Yap
Caong; that he had treated her in the month of August; that he visited
her first on the 8th day of August; that he visited her again on the 9th
and 10th days of August; that on the first visit he found the sick woman
completely weak — very weak from her sickness, in the third stage of
tuberculosis; that she was lying in bed; that on the first visit he found her
with but little sense, the second day also, and on the third day she had
lost all her intelligence; that she died on the 11th of August; tat he was
requested to issue the death certificate; that when he asked her (Tomasa)
whether she was feeling any pain or anything of that kind, she did not
answer at all; that she was in a condition of stupor, induced, as he
believed, by the stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was
also called as a witnesses during the rehearing. He testified that he had
known Tomasa Elizaga Yap Caong since he was a child; that Tomasa
was dead; that he had written the will exhibit A; that it was all in his
writing except the last part, which was written by Carlos Sobaco; that he
had written the will Exhibit A at the request of the uncle of Tomasa; that
Lorenzo, the brother of the deceased, was the one who had instructed
him as to the terms of the will ; that the deceased had not spoken to him
concerning the terms of the will; that the will was written in the dining
room of the residence of the deceased; that Tomasa was in another room
different from that in which the will was written; that the will was not
written in the presence of Tomasa; that he signed the will as a witness in
the room where Tomasa was lying; that the other witnesses signed the
will in the same room that when he went into the room where the sick
woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his
hands; that when Lorenzo came to the bed he showed the will to his
sister (Tomasa) and requested her to sign it; that she was lying stretched
out on the bed and two women, who were taking care of her, helped her
to sit up, supporting her by lacing their hands at her back; that when she
started to write her name, he withdrew from the bed on account of the
best inside the room; when he came back again to the sick bed the will
was signed and was again in the hands of Lorenzo; that he did not see
Tomasa sign the will because he withdrew from the room; that he did
not know whether Tomasa had been informed of the contents of the will
or not; he supposed she must have read it because Lorenzo turned the
will over to her; that when Lorenzo asked her to sign the will, he did not
know what she said — he could not hear her voice; that he did not know
whether the sick woman was him sign the will or not; that he believed
that Tomasa died the next day after the will had been signed; that the
other two witnesses, Timoteo Paez and Severo Tabora, had signed the
will in the room with the sick woman; that he saw them sign the will and
that they saw him sign it; that he was not sure whether the testatrix could
have seen them at the time they signed the will or not; that there was a
screen before the bed; that he did not think that Lorenzo had been giving
instructions as to the contents of the will; that about ten or fifteen
minutes elapsed from the time Lorenzo handed the will to Tomasa
before she started to sign it; that the pen with which she signed the will
as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew
Tomasa Elizaga Yap Caong and that she was dead; that she had made
two wills; that the first one was written by La O and the second by
Zacarias; that he was present at the time Zacarias wrote the second one;
that he was present when the second will was taken to Tomasa for
signature; that Lorenzo had told Tomasa that the second will was
exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there;
that Zacarias was not there; that Paez and Tabora were there; that he had
told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also
examined as witnesses. There is nothing in their testimony, however,
which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she
was 19 years of age; that she knew Tomasa Elizaga Yap Caong during
her lifetime; that she lived in the house of Tomasa during the last week
of her illness; that Tomasa had made two wills; that she was present
when the second one was executed; that a lawyer had drawn the will in
the dining room and after it had been drawn and everything finished , it
was taken to where Doña Tomasa was, for her signature; that it was
taken to her by Anselmo Zacarias; that she was present at the time
Tomasa signed the will that there were many other people present also;
that she did not see Timoteo Paez there; that she saw Severo Tabora;
that Anselmo Zacarias was present; that she did not hear Clotilde
Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say
to Tomasa that the second will was the same sa the first; that Tomasa
asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that
she saw Tomasa take hold of the pen and try to sign it but she did not
see the place she signed the document, for the reason that she left the
room; that she saw Tomasa sign the document but did not see on what
place on the document she signed; and that a notary public came the
next morning; that Tomasa was able to move about in the bed; that she
had seen Tomasa in the act of starting to write her signature when she
told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified
that he knew Tomasa Elizaga Yap Caong and knew that she had made a
will; that he saw the will at the time it was written; that he saw Tomasa
sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the
will; that Lorenzo had handed the will to Tomasa to sign; that he saw the
witnesses sign the will on a table near the bed; that the table was outside
the curtain or screen and near the entrance to the room where Tomasa
was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he
knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa
Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she sign the will; that the will was on a table near
the bed of Tomasa; that Tomasa, from where she was lying in the bed,
could seethe table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our
opinion, however, it is necessary to quote from them for the reason that
their testimony in no way affects the preponderance of proof above
quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an
extended opinion, reached the conclusion that the last will and testament
of Tomasa Elizaga Yap Caong, which was attached to the record and
marked Exhibit A was the last will and testament of the said Tomasa
Elizaga Yap Caong and admitted it to probate and ordered that the
administrator therefore appointed should continue as such administrator.
From that order the protestants appealed to this court, and made the
following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was
executed by the deceased Tomasa Yap Caong, without the
intervention of any external influence on the part of other
persons.
II. The court erred in declaring that the testator had clear
knowledge and knew what she was doing at the time of signing
the will.
III. The court erred in declaring that the signature of the
deceased Tomasa Yap Caong in the first will, Exhibit 1, is
identical with that which appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was
executed in accordance with the law.
With reference to the first assignment of error, to wit, that undue
influence was brought to bear upon Tomasa Elizaga Yap Caong in the
execution of her will of August 11th, 1909 (Exhibit A), the lower court
found that no undue influence had been exercised over the mind of the
said Tomasa Elizaga Yap Caong. While it is true that some of the
witnesses testified that the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the execution of he will, upon
the other hand, there were several witnesses who testified that Lorenzo
did not attempt, at the time of the execution of the will, to influence her
mind in any way. The lower court having had an opportunity to see, to
hear, and to note the witnesses during their examination reached the
conclusion that a preponderance of the evidence showed that no undue
influence had been used. we find no good reason in the record for
reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that Tomasa
Elizaga Yap Caong was not of sound mind and memory at the time of
the execution of the will, we find the same conflict in the declarations of
the witnesses which we found with reference to the undue influence.
While the testimony of Dr. Papa is very strong relating to the mental
condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before the
execution of the will in question (Exhibit A). Several witnesses testified
that at the time the will was presented to her for her signature, she was
of sound mind and memory and asked for a pen and ink and kept the
will in her possession for ten or fifteen minutes and finally signed it. The
lower court found that there was a preponderance of evidence sustaining
the conclusion that Tomasa Elizaga Yap Caong was of sound mind and
memory and in the possession of her faculties at the time she signed this
will. In view of the conflict in the testimony of the witnesses and the
finding of the lower court, we do not feel justified in reversing his
conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower
court committed an error in declaring that the signature of Tomasa
Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is
identical with that which appears in the second will (August 11, 1909,
Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will
of August 6, 1909 (Exhibit 1), was not the question presented to the
court. The question presented was whether or not she had duly executed
the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap
Caong did execute the will of August 6, 1909. Several witnesses
testified to that fact. The mere fact, however, that she executed a former
will is no proof that she did not execute a later will. She had a perfect
right, by will, to dispose of her property, in accordance with the
provisions of law, up to the very last of moment her life. She had a
perfect right to change, alter, modify or revoke any and all of her former
wills and to make a new one. Neither will the fact that the new will fails
to expressly revoke all former wills, in any way sustain the charge that
she did not make the new will.
Third. In said third assignment of error there is involved in the statement
that "The signature of Tomasa Elizaga Yap Caong, in her first will
(Exhibit 1) was not identical with that which appears in her second will
(Exhibit A)" the inference that she had not signed the second will and all
the argument of the appellants relating to said third assignment of error
is based upon the alleged fact that Tomasa Elizaga Yap Caong did not
sign Exhibit A. Several witnesses testified that they saw her write the
name "Tomasa." One of the witnesses testified that she had written her
full name. We are of the opinion, and we think the law sustains our
conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her
name tot he will, with the intention to sign the same, that the will
amount to a signature. It has been held time and time again that one who
makes a will may sign the same by using a mark, the name having been
written by others. If writing a mark simply upon a will is sufficient
indication of the intention of the person to make and execute a will, then
certainly the writing of a portion or all of her name ought to be accepted
as a clear indication of her intention to execute the will. (Re Goods of
Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening,
8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30
Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9
Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220
(6 L. R. A., 353), and cited by the appellees, which was known as
"Knox's Appeal." In this case one Harriett S. Knox died very suddenly
on the 17th of October, 1888, at the residence of her father. After her
death a paper was found in her room, wholly in her handwriting, written
with a lead pencil, upon three sides of an ordinary folded sheet of note
paper and bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her property. The will
was presented for probate. The probation was opposed upon the ground
that the same did not contain the signature of the deceased. That was the
only question presented to the court, whether the signature, in the form
above indicated, was a sufficient signature to constitute said paper the
last will and testament of Harriett S. Knox. It was admitted that the
entire paper was in the handwriting of the deceased. In deciding that
question, Justice Mitchell said:
The precise case of a signature by the first name only, does not
appear to have arisen either in England or the United States; but
the principle on which the decisions already referred to were
based, especially those in regard to signing by initials only, are
equally applicable to the present case, and additional force is
given to them by the decisions as to what constitutes a binding
signature to a contract. (Palmer vs. Stephens, 1 Denio, 478;
Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill.,
424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply
therefor, upon the will, is held to "sign" as effectually as if he had
written his initials or his full name. It would seem to be sufficient, under
the law requiring a signature by the person making a will, to make his
mark, to place his initials or all or any part of his name thereon. In the
present case we think the proof shows, by a large preponderance, that
Tomasa Elizaga Yap Caong, if she did not sign her full name, did at
least sign her given name "Tomasa," and that is sufficient to satisfy the
statute.
With reference to the fourth assignment of error, it may be said that the
argument which was preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to show
that Tomasa Elizaga Yap Caong did not sign her name in the presence
of the witnesses and that they did not sign their names in their presence
nor in the presence of each other. Upon that question there is
considerable conflict of proof. An effort was made to show that the will
was signed by the witnesses in one room and by Tomasa in another. A
plan of the room or rooms in which the will was signed was presented as
proof and it was shown that there was but one room; that one part of the
room was one or two steps below the floor of the other; that the table on
which the witnesses signed the will was located upon the lower floor of
the room. It was also shown that from the bed in which Tomasa was
lying, it was possible for her to see the table on which the witnesses
signed the will. While the rule is absolute that one who makes a will
must sign the same in the presence of the witnesses and that the
witnesses must sign in the presence of each other, as well as in the
presence of the one making the will, yet, nevertheless, the actual seeing
of the signatures made is not necessary. It is sufficient if the signatures
are made where it is possible for each of the necessary parties, if they
desire to see, may see the signatures placed upon the will.

In cases like the present where there is so much conflict in the proof, it
is very difficult for the courts to reach conclusions that are absolutely
free from doubt. Great weight must be given by appellate courts who do
not see or hear the witnesses, to the conclusions of the trial courts who
had that opportunity.

Upon a full consideration of the record, we find that a preponderance of

the proof shows that Tomasa Elizaga Yap Caong did execute, freely and
voluntarily, while she was in the right use of all her faculties, the will
dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower
court admitting said will to probate is hereby affirmed with costs.
 Abangan vs. Abangan
G.R. No. L-13431            November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to
probate Ana Abangan's will executed July, 1916. From this decision the
opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two
sheets, the first of which contains all of 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;
and these omissions, according to appellants' contention, are defects
whereby the probate of the will should have been denied. We are of the
opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed
on the left margin by the testator and three witnesses in the presence of
each other, Act No. 2645 (which is the one applicable in the case)
evidently has for its object (referring to the body of the will itself) to
avoid the substitution of any of said sheets, thereby changing the
testator's dispositions. But when these dispositions are wholly written on
only one sheet signed at the bottom by the testator and three witnesses
(as the instant case), their signatures on the left margin of said sheet
would be completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly, the case of a
will written on several sheets and must have referred to the sheets which
the testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires that this
sheet, already signed at the bottom, be signed twice. We cannot attribute
to the statute such an intention. As these signatures must be written by
the testator and the witnesses in the presence of each other, it appears
that, if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be unneccessary;
and if they do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their
signatures written on the bottom do not guaranty the authenticity of the
sheet but, if repeated on the margin, give sufficient security.
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.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an essential
part of the will, we hold that in the one accompanying the will in
question, the signatures of the testatrix and of the three witnesses on the
margin and the numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the signature of
the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses
and not to the testator since the latter does not attest, but executes, the
will.
Synthesizing our opinion, we hold that 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 primordal 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.  lawphil.net

As another ground for this appeal, it is alleged the records do not show
that the testarix knew the dialect in which the will is written. But the
circumstance appearing in the will itself that same was executed in the
city of Cebu and in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby

affirmed with costs against the appellants. So ordered.
 Lopez vs. Liboro language known to the decedent after petitioner rested his case and over
the vigorous objection of the oppositor.
G.R. No. L-1787             August 27, 1948
The will in question comprises two pages, each of which is written on
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee, one side of a separate sheet. The first sheet is not paged either in letters
vs. or in Arabic numerals. This, the appellant believes, is a fatal defect.
AGUSTIN LIBORO, oppositor-appellant.
The purpose of the law in prescribing the paging of wills is guard
Tirona, Gutierrez and Adorable for appellant. against fraud, and to afford means of preventing the substitution or of
Ramon Diokno for appellee. defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.,
476.) In the present case, the omission to put a page number on the first
TUASON, J.: sheet, if that be necessary, is supplied by other forms of identification
more trustworthy than the conventional numerical words or characters.
The unnumbered page is clearly identified as the first page by the
In the Court of First Instance of Batangas the appellant opposed
internal sense of its contents considered in relation to the contents of the
unsuccessfully the probate of what purports to be the last will and
second page. By their meaning and coherence, the first and second lines
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
on the second page are undeniably a continuation of the last sentence of
Balayan, Batangas, on March 3, 1947, almost six months after the
the testament, before the attestation clause, which starts at the bottom of
document in question was executed. In the court below, the present
the preceding page. Furthermore, the unnumbered page contains the
appellant specified five grounds for his opposition, to wit: (1) that the
caption "TESTAMENTO," the invocation of the Almighty, and a recital
deceased never executed the alleged will; (2) that his signature
that the testator was in full use of his testamentary faculty, — all of
appearing in said will was a forgery; (3) that at the time of the execution
which, in the logical order of sequence, precede the direction for the
of the will, he was wanting in testamentary as well as mental capacity
disposition of the marker's property. Again, as page two contains only
due to advanced age; (4) that, if he did ever execute said will, it was not
the two lines above mentioned, the attestation clause, the mark of the
executed and attested as required by law, and one of the alleged
testator and the signatures of the witnesses, the other sheet can not by
instrumental witnesses was incapacitated to act as such; and it was
any possibility be taken for other than page one. Abangan vs.
procured by duress, influence of fear and threats and undue and
Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are
improper pressure and influence on the part of the beneficiaries
decisive of this issue.
instituted therein, principally the testator's sister, Clemencia Lopez, and
the herein proponent, Jose S. Lopez; and (5) that the signature of the
testator was procured by fraud or trick. Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses is
assailed under this heading. On the merits we do not believe that the
In this instance only one of these objections is reiterated, formulated in
appellant's contention deserves serious consideration. Such
these words: "That the court a quo erred in holding that the document
contradictions in the testimony of the instrumental witnesses as are set
Exhibit "A" was executed in all particulars as required by law." To this
out in the appellant's brief are incidents not all of which every one of the
objection is added the alleged error of the court "in allowing the
witnesses can be supposed to have perceived, or to recall in the same
petitioner to introduce evidence that Exhibit "A" was written in a
order in which they occurred.
 Everyday life and the result of investigations made in the field
of experimental psychology show that the contradictions of
witnesses generally occur in the details of a certain incident,
after a long series of questioning, and far from being an
evidence of falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their
impressions they should not agree in the minor details; hence,
the contradictions in their testimony. (People vs. Limbo, 49
Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing
his name. The reason for this was that the testator was suffering from
"partial paralysis." While another in testator's place might have directed
someone else to sign for him, as appellant contends should have been
done, there is nothing curious or suspicious in the fact that the testator
chose the use of mark as the means of authenticating his will. It was a
matter of taste or preference. Both ways are good. A statute requiring a
will to be "signed" is satisfied if the signature is made by the testator's
mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the
opinion that the trial court communicated an abuse of discretion in
allowing the appellant to offer evidence to prove knowledge of Spanish
by the testator, the language in which the will is drawn, after the
petitioner had rested his case and after the opponent had moved for
dismissal of the petition on the ground of insufficiency of evidence. It is
within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly been abused.
(64 C. J., 160.) More, it is within the sound discretion of the court
whether or not it will allow the case to be reopened for the further
introduction of evidence after a motion or request for a nonsuit, or
a demurrer to the evidence, and the case may be reopened after the court
has announced its intention as to its ruling on the request, motion, or
demurrer, or has granted it or has denied the same, or after the motion
has been granted, if the order has not been written, or entered upon the
minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have
produced their respective direct proofs, they are allowed to offer
rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer evidence
upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. (Siuliong and Co.
vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly discovered, or where it
has been omitted through inadvertence or mistake, or where the purpose
of the evidence is to the evidence is to correct evidence previously
offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C.
J., 160-163.) The omission to present evidence on the testator's
knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns
the will for its silence on the testator's understanding of the language
used in the testament. There is no statutory requirement that such
knowledge be expressly stated in the will itself. It is a matter that may
be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did not say that the testator
knew that idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog region,
from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and
testament of Don Sixto Lopez is affirmed, with costs.
 Garcia vs. Lacuesta – repeated
 Taboada vs. Rosal
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.:
This is a petition for review of the orders issued by the Court of First
Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
1713, entitled "In the Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration and the motion for
appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner
attached the alleged last will and testament of the late Dorotea Perez.
Written in the Cebuano-Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary dispositions and is signed
at the end or bottom of the page by the testatrix alone and at the left
hand margin by the three (3) instrumental witnesses. The second page
which contains the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3) attesting witnesses
and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch
clerk of court to receive the petitioner's evidence. Accordingly, the
petitioner submitted his evidence and presented Vicente Timkang, one
of the subscribing witnesses to the will, who testified on its genuineness
and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the
questioned order denying the probate of the will of Dorotea Perez for
want of a formality in its execution. In the same order, the petitioner was
also required to submit the names of the intestate heirs with their
corresponding addresses so that they could be properly notified and
could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed
a manifestation and/or motion, ex parte praying for a thirty-day period
within which to deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day period required
by the court to submit the names of intestate heirs with their addresses
be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying
the probate of the will. However, the motion together with the previous
manifestation and/or motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal.
The said motions or incidents were still pending resolution when
respondent Judge Avelino S. Rosal assumed the position of presiding
judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special
administrator.
Subsequently, the new Judge denied the motion for reconsideration as
well as the manifestation and/or motion filed ex parte. In the same order
of denial, the motion for the appointment of special administrator was
likewise denied because of the petitioner's failure to comply with the
order requiring him to submit the names of' the intestate heirs and their
addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil
Code require that the testatrix and all the three instrumental and attesting
witnesses sign at the end  of the will and in the presence of the testatrix
and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that
the lacier witnesses and signed the will and the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to
require that, for a notarial will to be valid, it is not enough that only the
testatrix signs at the "end" but an the three subscribing witnesses must
also sign at the same place or at the end, in the presence of the testatrix
and of one another because the attesting witnesses to a will attest not
merely the will itself but also the signature of the testator. It is not
sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil
Code does not make it a condition precedent or a matter of absolute
necessity for the extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the end of the
wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the
space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is
consistent with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the testator's
name written by another person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that
those things are, done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other
hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of Identification of such paper as the will which
was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the
first page of the will attested not only to the genuineness of the signature
of the testatrix but also the due execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial
departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449).
The law is to be liberally construed, "the underlying and fundamental
objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will"
(Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order
that were not for the defect in the place of signatures of the witnesses, he
would have found the testimony sufficient to establish the validity of the
will.
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or substitution behind the
questioned order.
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this case, it
is discernible from the entire wig that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The acknowledgment itself
states that "This Last Will and Testament consists of two pages
including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement
that the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the win is written,
which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is
intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil.
30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have
the effect of invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or examination of the
will itself. But here the situation is different. While the attestation clause
does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it
within the realm of similar cases where a broad and more liberal view
has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling
which applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the
fact that the testatrix and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint of the seal of the
notary public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the inadvertence of
a single witness over whose conduct she had no control where the
purpose of the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated in Vda. de
Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or
bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the

respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment
of a special administrator are set aside. The respondent court is ordered
to allow the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs. SO
ORDERED.

 Nera vs. Rimando
G.R. No. L-5971            February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is
whether one of the subscribing witnesses was present in the small room
where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time
he was outside, some eight or ten feet away, in a large room connecting
with the smaller room by a doorway, across which was hung a curtain
which made it impossible for one in the outside room to see the testator
and the other subscribing witnesses in the act of attaching their
signatures to the instrument.
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator and the other
subscribing witnesses at the time when they attached their signatures to
the instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of
this question of fact of vital importance in the determination of this case,
as he was of opinion that under the doctrine laid down in the case
of Jaboneta vs. Gustilo  (5 Phil. Rep., 541) the alleged fact that one of
the subscribing witnesses was in the outer room when the testator and
the other describing witnesses signed the instrument in the inner room,
had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their
signatures to the instrument in the inner room, it would have been
invalid as a will, the attaching of those signatures under circumstances
not being done "in the presence" of the witness in the outer room. This
because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other
sign, but whether they might have been seen each other sign,
had they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment
of inscription of each signature.
But it is especially to be noted that the position of the parties with
relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they choose
to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in
the presence of each other if it appears that they would not have been
able to see each other sign at that moment, without changing their
relative positions or existing conditions. The evidence in the case relied
upon by the trial judge discloses that "at the moment when the witness
Javellana signed the document he was actually and physically present
and in such position with relation to Jaboneta that he could see
everything that took place by merely casting his eyes in the proper
direction and without any physical obstruction to prevent his doing so."
And the decision merely laid down the doctrine that the question
whether the testator and the subscribing witnesses to an alleged will sign
the instrument in the presence of each other does not depend upon proof
of the fact that their eyes were actually cast upon the paper at the
moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were
such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the
door to the possibility of all manner of fraud, substitution, and the like,
and would defeat the purpose for which this particular condition is
prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument

propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.

 De Gala vs. Gonzales and Ona
G.R. No. L-30289             March 26, 1929
SERAPIA DE GALA, petitioner-appellant,
vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-
appellants.
OSTRAND, J.:
On November 23, 1920, Severina Gonzales executed a will in which
Serapia de Gala, a niece of Severina, was designated executrix. The
testatrix died in November, 1926, leaving no heirs by force of law, and
on December 2, 1926, Serapia, through her counsel, presented the will
for probate. Apolinario Gonzales, a nephew of the deceased, filed an
opposition to the will on the ground that it had not been executed in
conformity with the provisions of section 618 of the Code of Civil
Procedure. On April 2, 1927, Serapia de Gala was appointed special
administratrix of the estate of the deceased. She returned an inventory of
the estate on March 31, 1927, and made several demands upon
Sinforoso Ona, the surviving husband of the deceased, for the delivery
to her of the property inventoried and of which he was in possession.
On September 20, 1928, the Court of First Instance ordered Sinforoso
Ona to deliver to Serapia de Gala all the property left by the deceased.
Instead of delivering the property as ordered, Sinforoso filed a motion
asking the appointment of Serapia de Gala as special administratrix be
cancelled and that he, Sinforoso, be appointed in her stead. The motion
was opposed by both Apolinario Gonzales and by Serapia de Gala, but
on March 3, 1928, it was nevertheless granted, Serapia was removed,
and Sinforoso was appointed special administrator in her place,
principally on the ground that he had possession of the property in
question and that his appointment would simplify the proceedings.
In the meantime and after various continuances and delays, the court
below in an order dated January 20, 1928, declared the will valid and
admitted it to probate. All of the parties appealed, Serapia de Gala from
the order removing her from the office of special administratrix, and
Apolinario Gonzales and Sinforoso Ona from the order probating the
will.
Serapia's appeal requires but little discussion. The burden of the
argument of her counsel is that a special administrator cannot be
removed except for one or more of the causes stated in section 653 of
the Code of Civil Procedure. But that section can only apply to
executors and regular administrators, and the office of a special
administrator is quite different from that of regular administrator. The
appointment of a special administrator lies entirely in the sound
discretion of the court; the function of such an administrator is only to
collect and preserve the property of the deceased and to return an
inventory thereof; he cannot be sued by a creditor and cannot pay any
debts of the deceased. The fact that no appeal can be taken from the
appointment of a special administrator indicates that both his
appointment and his removal are purely discretionary, and we cannot
find that the court below abused its discretion in the present case. In
removing Serapia de Gala and appointing the present possessor of the
property pending the final determination of the validity of the will, the
court probably prevented useless litigation.
The appellants Sinforoso Ona and Apolinario Gonzales argue that the
will in question was not executed in the form prescribed by section 618
of the Code of Civil Procedure as amended by Act No. 2645. That
section reads as follows:
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or 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.
The principal points raised by the appeal are (1) that the person
requested to sign the name of the testatrix signed only the latter's name
and not her own; (2) that the attestation clause does not mention the
placing of the thumb-mark of the testatrix in the will; and (3) that the
fact that the will had been signed in the presence of the witnesses was
not stated in the attestation clause but only in the last paragraph of the
body of the will.
The first point can best be answered by quoting the language of this
court in the case of the Estate of Maria Salva, G. R. No. 26881:1
An examination of the will in question disclosed that it contains
five pages. The name of the old woman, Maria Salva, was
written on the left hand margin of the first four pages and at the
end of the will. About in the center of her name she placed her
thumb-mark. About in the center of her name she placed her
thumb-mark. The three witnesses likewise signed on the left-
hand margin and at the end of the will.
On these facts, the theory of the trial judge was that under the
provisions of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, it was essential to the validity of the
will that the person writing the name of the maker of the will
also sign. Under the law prior to the amendment, it had been
held by this court that where a testator is unable to write and his
name is signed by another at his request, in his presence and in
that of the subscribing witnesses thereto, it is unimportant, so
far as the validity of the will is concerned, whether the person
who writes the name of the testator signs his own or not. (Barut
vs. Cabacungan (1912), 21 Phil., 461). But his Honor, the trial
judge emphasizes that the amendment introduced into the law
the following sentence: '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 . . ..' This requirement, it is said, was not
lived up to in this instance.
There is, however, an entirely different view which can be
taken of the situation. This is that the testatrix placed her
thumb-mark on the will in the proper places. When, therefore,
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. The
construction put upon the word 'signed' by most courts is the
original meaning of a signum or sign, rather than the derivative
meaning of a sign manual or handwriting. A statute requiring a
will to be 'signed' is satisfied if the signature is made by the
testator's mark. (28 R. C. L., pp. 116-117).
The opinion quoted is exactly in point. The testatrix thumb-mark
appears in the center of her name as written by Serapia de Gala on all of
the pages of the will.
The second and third points raised by Sinforoso Ona and Apolinario
Gonzales are sufficiently refuted by quoting the last clause of the body
of the will together with the attestation clause, both of which are written
in the Tagalog dialect. These clauses read as follows:
Sa katunayang ang kasulatang ito, na may anim na dahon, ay
siyang naglalaman ng aking huling tagubilin, at sa hindi ko
kaalamang lumagda ng aking pangalan, ipinamanhik ko sa
aking pamankin na si Serapia de Gala na isulat ang aking
pangalan at apellido, at sa tapat ay inilagda ko ang titik ng
kanang daliri kong hinlalaki, sa walkas at sa bawat isa sa anim
(6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan
 at sa harap ko at ng tatlong saksing nagpapatutuo sa huli ngayon
ika dalawang po't tatlo ng Nobiembre ng 1920.
(Sgd.) SEVERINA GONZALES
Pinatutunayan namin na ang kasulatang ito na binubuo ng anim
(6) na dahon na pinirmahan sa harap namin ni Serapia de Gala
sa kahilingan ni Severina Gonzales sa wakas at sa mga gilid ng
bawa't isa sa anim (6) na dahon at isinaysay na ang kasulatang
ito ay siyang huling habilin o testamento ni Severina Gonzales,
ay pinirmahan namin, bilang mga saksi sa wakas at sa gilid ng
bawa't dahon sa harap at sa kahilingan ng tinurang testadora, at
ang bawat isa sa amin ay pumirma sa harap ng lahat at bawat
isa sa amin, ngayon ika dalawang po't tatlo ng noviembre ng
taong 1920 ng taong 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
The translation in English of the clauses quoted reads as follows:
In virtue of this will, consisting of six pages, that contains my
last wish, and because of the fact that I cannot sign my name, I
request my niece Serapia de Gala to write my name, and above
this I placed my right thumb-mark at the end of this will and to
each of the six pages of this document, and this was done at my
direction and in the presence of three attesting witnesses, this
23rd of November, 1920.
(Sgd.) SEVERINA GONZALES
We certify that this document, which is composed of six (6)
sheets and was signed in our presence by Serapia de Gala at the
request of Severina Gonzales at the end and on the margins of
each of the six (6) sheets and was declared to contain the last
will and testament of Severina Gonzales, was signed by us as
witnesses at the end and on the margins of each sheet in the
presence and at the request of said testatrix, and each of us
signed in the presence of all and each of us, this 23rd day of
November of the year 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
As will be seen, it is not mentioned in the attestation clause that the
testatrix signed by thumb-mark, but it does there appear that the
signature was affixed in the presence of the witnesses, and the form of
the signature is sufficiently described and explained in the last clause of
the body of the will. 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.
The contention of the appellants Sinforoso Ona and Apolinario
Gonzales that the fact that the will had been signed in the presence of
the witnesses was not stated in the attestation clause is without merit; the
fact is expressly stated in that clause.
In our opinion, the will is valid, and the orders appealed from are hereby
affirmed without costs. So ordered.

 Jaboneta vs. Gustillo
G.R. No. 1641            January 19, 1906
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because 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 signature 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.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q.       1641     Who first signed the will?
A.       1641     I signed it first, and afterwards Aniceto and the
others.
Q.       1641     Who were those others to whom you have just
referred?
A.       1641     After the witness Aniceto signed the will I left
the house, because I was in a hurry, and at the moment when I
was leaving I saw Julio Javellana with the pen in his hand in
position ready to sign (en actitud de firmar). I believe he
signed, because he was at the table. . . .
Q.       1641     State positively whether Julio Javellana did or
did not sign as a witness to the will.
A.       1641     I can't say certainly, because as I was leaving the
house I saw Julio Javellana with the pen in his hand, in position
ready to sign. I believe he signed.
Q.       1641     Why do you believe Julio Javellana signed?
A.       1641     Because he had the pen in his hand, which was
resting on the paper, though I did not actually see him sign.
Q.       1641     Explain this contradictory statement.
A.       1641     After I signed I asked permission to leave,
because I was in a hurry, and while I was leaving Julio had
already taken the pen in his hand, as it appeared, for the purpose
of signing, and when I was near the door I happened to turn my
face and I saw that he had his hand with the pen resting on the
will, moving it as if for the purpose of signing.
Q.       1641     State positively whether Julio moved his hand
with the pen as if for the purpose of signing, or whether he was
signing
A.       I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem to
have been questioned by any of the parties to the proceedings, but the
court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed
under the following circumstances the document in question,
which has been presented for probate as his will:
 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.
We can not agree with so much of the above finding of facts as holds
that the signature of Javellana was not signed in the presence of Jena, in
compliance with the provisions of section 618 of the Code of Civil
Procedure. 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.
(See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there
cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is
sufficient if the witnesses are together for the purpose of witnessing the
execution of the will, and in a position to actually see the testator write,
if they choose to do so; and there are many cases which lay down the
rule that the true test of vision is not whether the testator actually saw
the witness sign, but whether he might have seen him sign, considering
his mental and physical condition and position at the time of the
subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in
determining whether the witnesses signed the instrument in the presence
of each other, as required by the statute, and applying them to the facts
proven in these proceedings we are of opinion that the statutory
requisites as to the execution of the instrument were complied with, and
that the lower court erred in denying probate to the will on the ground
stated in the ruling appealed from.
We are of opinion from 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.
The judgment of the trial court is reversed, without especial
condemnation of costs, and after twenty days the record will be returned
to the court form whence it came, where the proper orders will be
entered in conformance herewith. So ordered.

 Valmonte vs. Ortega
G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the
burden of showing why it should not be allowed. In the present case,
petitioner has failed to discharge this burden satisfactorily. For this
reason, the Court cannot attribute any reversible error on the part of the
appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review under Rule 45 of the Rules of
1 
Court, seeking to reverse and set aside the December 12, 2002
Decision and the March 7, 2003 Resolution of the Court of Appeals
2  3 
(CA) in CA-GR CV No. 44296. The assailed Decision disposed as
follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed
from is REVERSED and SET ASIDE. In its place judgment is
rendered approving and allowing probate to the said last will and
testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be
remanded to the court a quo for further and concomitant proceedings."
The assailed Resolution denied petitioner’s Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as
follows:
"x x x: Like so many others before him, Placido toiled and lived for a
long time in the United States until he finally reached retirement. In
1980, Placido finally came home to stay in the Philippines, and he lived
in the house and lot located at #9200 Catmon St., San Antonio Village,
Makati, which he owned in common with his sister Ciriaca Valmonte
and titled in their names in TCT 123468. Two years after his arrival
from the United States and at the age of 80 he wed Josefina who was
then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio,
Jr. on February 5, 1982. But in a little more than two years of wedded
bliss, Placido died on October 8, 1984 of a cause written down as COR
PULMONALE.
"Placido executed a notarial last will and testament written in English
and consisting of two (2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first page contains the entire
testamentary dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator and on the left
hand margin by the three instrumental witnesses. The second page
contains the continuation of the attestation clause and the
acknowledgment, and was signed by the witnesses at the end of the
attestation clause and again on the left hand margin. It provides in the
body that:
‘LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN
THE NAME OF THE LORD AMEN:
‘I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag
Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila,
83 years of age and being of sound and disposing mind and memory, do
4
hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the
auspices of the Catholic Church in accordance with the rites and said
Church and that a suitable monument to be erected and provided my by
executrix (wife) to perpetuate my memory in the minds of my family
and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of the follow-described properties,
which belongs to me as [co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO),
situated in Makati, Metro Manila, described and covered by TCT No.
123468 of the Register of Deeds of Pasig, Metro-Manila registered
jointly as co-owners with my deceased sister (Ciriaca Valmonte), having
share and share alike;
b. 2-storey building standing on the above-described property, made of
strong and mixed materials used as my residence and my wife and
located at No. 9200 Catmon Street, Makati, Metro Manila also covered
by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly in
the name of my deceased sister, Ciriaca Valmonte and myself as co-
owners, share and share alike or equal co-owners thereof;
3. All the rest, residue and remainder of my real and personal properties,
including my savings account bank book in USA which is in the
possession of my nephew, and all others whatsoever and wherever
found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of
my last will and testament, and it is my will that said executrix be
exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of
June 1983 in Quezon City, Philippines.’
"The allowance to probate of this will was opposed by Leticia on the
grounds that:
1. Petitioner failed to allege all assets of the testator, especially those
found in the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs
of the testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal
solemnities and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the
alleged execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on
the part of the petitioner and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not
intend that the instrument should be his will at the time of affixing his
signature thereto;’
and she also opposed the appointment as Executrix of Josefina alleging
her want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses
the notary public Atty. Floro Sarmiento who prepared and notarized the
will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and
Feliza Gomez and Josie Collado. For the opposition, the oppositor
Leticia and her daughter Mary Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in
her parents house at Salingcob, Bacnotan, La Union but they came to
Manila every month to get his $366.00 monthly pension and stayed at
the said Makati residence. There were times though when to shave off
on expenses, the testator would travel alone. And it was in one of his
travels by his lonesome self when the notarial will was made. The will
was witnessed by the spouses Eugenio and Feliza Gomez, who were
their wedding sponsors, and by Josie Collado. Josefina said she had no
knowledge of the existence of the last will and testament of her husband,
but just serendipitously found it in his attache case after his death. It was
only then that she learned that the testator bequeathed to her his
properties and she was named the executrix in the said will. To her
estimate, the value of property both real and personal left by the testator
is worth more or less P100,000.00. Josefina declared too that the testator
never suffered mental infirmity because despite his old age he went
alone to the market which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if she could not
accompany him, even traveled to Manila alone to claim his monthly
pension. Josefina also asserts that her husband was in good health and
that he was hospitalized only because of a cold but which eventually
resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the
testator’s will, testified that it was in the first week of June 1983 when
the testator together with the three witnesses of the will went to his
house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and dispositions
he wanted on the will, the notary public told them to come back on June
15, 1983 to give him time to prepare it. After he had prepared the will
the notary public kept it safely hidden and locked in his drawer. The
testator and his witnesses returned on the appointed date but the notary
public was out of town so they were instructed by his wife to come back
on August 9, 1983, and which they did. Before the testator and his
witnesses signed the prepared will, the notary public explained to them
each and every term thereof in Ilocano, a dialect which the testator
spoke and understood. He likewise explained that though it appears that
the will was signed by the testator and his witnesses on June 15, 1983,
the day when it should have been executed had he not gone out of town,
the formal execution was actually on August 9, 1983. He reasoned that
he no longer changed the typewritten date of June 15, 1983 because he
did not like the document to appear dirty. The notary public also
testified that to his observation the testator was physically and mentally
capable at the time he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony of the
notary public, and testified that the testator went alone to the house of
spouses Eugenio and Feliza Gomez at GSIS Village, Quezon City and
requested them to accompany him to the house of Atty. Floro Sarmiento
purposely for his intended will; that after giving his instructions to Atty.
Floro Sarmiento, they were told to return on June 15, 1983; that they
returned on June 15, 1983 for the execution of the will but were asked to
come back instead on August 9, 1983 because of the absence of the
notary public; that the testator executed the will in question in their
presence while he was of sound and disposing mind and that he was
strong and in good health; that the contents of the will was explained by
the notary public in the Ilocano and Tagalog dialect and that all of them
as witnesses attested and signed the will in the presence of the testator
and of each other. And that during the execution, the testator’s wife,
Josefina was not with them.
"The oppositor Leticia declared that Josefina should not inherit alone
because aside from her there are other children from the siblings of
Placido who are just as entitled to inherit from him. She attacked the
mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and
was no longer of sound mind. She knew whereof she spoke because in
1983 Placido lived in the Makati residence and asked Leticia’s family to
live with him and they took care of him. During that time, the testator’s
physical and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane Ortega for
whom Placido took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he evidence
adduced, reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the
execution and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution of the
will as he was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly
disallowed probate." 5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido
Valmonte to probate. The CA upheld the credibility of the notary public
and the subscribing witnesses who had acknowledged the due execution
of the will. Moreover, it held that the testator had testamentary capacity
at the time of the execution of the will. It added that his "sexual
exhibitionism and unhygienic, crude and impolite ways" did not make
6 
him a person of unsound mind.
Hence, this Petition. 7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to great
respect.
"II.
Whether or not the signature of Placido Valmonte in the subject will was
procured by fraud or trickery, and that Placido Valmonte never intended
that the instrument should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time
he allegedly executed the subject will."8
In short, petitioner assails the CA’s allowance of the probate of the will
of Placido Valmonte.
This Court’s Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a
Petition for Review under Section 1 of Rule 45 of the Rules of Court. As
an exception, however, the evidence presented during the trial may be
examined and the factual matters resolved by this Court when, as in the
instant case, the findings of fact of the appellate court differ from those
of the trial court.
9
The fact that public policy favors the probate of a will does not
necessarily mean that every will presented for probate should be
allowed. The law lays down the procedures and requisites that must be
satisfied for the probate of a will. Verily, Article 839 of the Civil Code
10 
states the instances when a will may be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making
a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of
fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument
he signed should be his will at the time of affixing his signature thereto."
In the present case, petitioner assails the validity of Placido Valmonte’s
will by imputing fraud in its execution and challenging the testator’s
state of mind at the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding
it are indicative of the existence of fraud. Particularly, she alleges that
respondent, who is the testator’s wife and sole beneficiary, conspired
with the notary public and the three attesting witnesses in deceiving
Placido to sign it. Deception is allegedly reflected in the varying dates of
the execution and the attestation of the will.
Petitioner contends that it was "highly dubious for a woman at the prime
of her young life [to] almost immediately plunge into marriage with a
man who [was] thrice her age x x x and who happened to be [a] Fil-
American pensionado," thus casting doubt on the intention of
11 
respondent in seeking the probate of the will. Moreover, it supposedly
"defies human reason, logic and common experience" for an old man
12 
with a severe psychological condition to have willingly signed a last will
and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or
pretense, by which the subject of it is cheated. It may be of such
character that the testator is misled or deceived as to the nature or
contents of the document which he executes, or it may relate to some
extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would
not have made." 13
We stress that the party challenging the will bears the burden of proving
the existence of fraud at the time of its execution. The burden to show
14 
otherwise shifts to the proponent of the will only upon a showing of
credible evidence of fraud. Unfortunately in this case, other than the
15 
self-serving allegations of petitioner, no evidence of fraud was ever
presented.
It is a settled doctrine that the omission of some relatives does not affect
the due execution of a will. That the testator was tricked into signing it
16 
was not sufficiently established by the fact that he had instituted his
wife, who was more than fifty years his junior, as the sole beneficiary;
and disregarded petitioner and her family, who were the ones who had
taken "the cudgels of taking care of [the testator] in his twilight years." 17
Moreover, as correctly ruled by the appellate court, the conflict between
the dates appearing on the will does not invalidate the document,
"because the law does not even require that a [notarial] will x x x be
executed and acknowledged on the same occasion." More important,
18 
the will must be subscribed by the testator, as well as by three or more
credible witnesses who must also attest to it in the presence of the
testator and of one another. Furthermore, the testator and the witnesses
19 
must acknowledge the will before a notary public. In any event, we
20 
agree with the CA that "the variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and persuasively
explained by the notary public and the instrumental witnesses." 21
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as
quoted by the CA -- are reproduced respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when
the testator and his witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your
house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when the
document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses affixed
their respective signature on the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date appearing
on the body of the document as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in
my own handwriting August 9, 1983 on the acknowledgement. (tsn,
June 11, 1985, pp. 8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983,
whereas in the acknowledgement it is dated August 9, 1983, will you
look at this document and tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the
two witnesses; that was first week of June and Atty. Sarmiento told us to
return on the 15th of June but when we returned, Atty. Sarmiento was
not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you
again go back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed, who
were your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25,
1985, pp. 7-8)
Felisa Gomez on cross-examination:
Q Why did you have to go to the office of Atty. Floro Sarmiento, three
times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of
June was out first time. We went there to talk to Atty. Sarmiento and
Placido Valmonte about the last will and testament. After that what they
have talked what will be placed in the testament, what Atty. Sarmiento
said was that he will go back on the 15th of June. When we returned on
June 15, Atty. Sarmiento was not there so we were not able to sign it,
the will. That is why, for the third time we went there on August 9 and
that was the time we affixed our signature. (tsn, October 13, 1986, pp. 4-
6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983,
what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9,
1983.
Q And on August 9, 1983 did you go back to the house of Atty.
Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)" 22
Notably, petitioner failed to substantiate her claim of a "grand
conspiracy" in the commission of a fraud. There was no showing that
the witnesses of the proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due execution. Their
23 
testimony favoring it and the finding that it was executed in accordance
with the formalities required by law should be affirmed, absent any
showing of ill motives. 24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code
gives the following guidelines:
"Article 798. In order to make a will it is essential that the testator be of
sound mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be
in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or shattered by disease, injury or other
cause.
"It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper objects
of his bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in
the absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time
of making his dispositions is on the person who opposes the probate of
the will; but if the testator, one month, or less, before making his will
was publicly known to be insane, the person who maintains the validity
of the will must prove that the testator made it during a lucid interval."
According to Article 799, the three things that the testator must have the
ability to know to be considered of sound mind are as follows: (1) the
nature of the estate to be disposed of, (2) the proper objects of the
testator’s bounty, and (3) the character of the testamentary act. Applying
this test to the present case, we find that the appellate court was correct
in holding that Placido had testamentary capacity at the time of the
execution of his will.
It must be noted that despite his advanced age, he was still able to
identify accurately the kinds of property he owned, the extent of his
shares in them and even their locations. As regards the proper objects of
his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives
from the will did not affect its formal validity. There being no showing
of fraud in its execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA, which held thus:
25 
"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that
degrees of mental aberration generally known as insanity or idiocy,
there are numberless degrees of mental capacity or incapacity and while
on one hand it has been held that mere weakness of mind, or partial
imbecility from disease of body, or from age, will not render a person
incapable of making a will; a weak or feebleminded person may make a
valid will, provided he has understanding and memory sufficient to
enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is
not necessary that the mind be unbroken or unimpaired or unshattered
by disease or otherwise. It has been held that testamentary incapacity
does not necessarily require that a person shall actually be insane or of
unsound mind." 26

WHEREFORE, the Petition is DENIED, and the assailed Decision and

Resolution of the Court of Appeals are AFFIRMED. Costs against
petitioner.

SO ORDERED.

 Azuela vs. Castillo
G.R. No. 122880             April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted
by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly
executed by Eugenia E. Igsolo (decedent), who died on 16 December
1982 at the age of 80. In refusing to give legal recognition to the due
execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills,
all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages
on which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which does
not contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A
notarial will with all three defects is just aching for judicial
rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a
notarial will. Full and faithful compliance with all the detailed requisites
under Article 805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article 806 likewise
imposes another safeguard to the validity of notarial wills — that they
be acknowledged before a notary public by the testator and the
witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with
the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is
the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular
Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-
isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling
habilin at testamento, at binabali wala ko lahat ang naunang ginawang
habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La
Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at
ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog
upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa
aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa
mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28,
Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan
kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay
Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at
kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na
kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng
Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong
ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya
niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana
at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the
left-hand margin of both pages of the will, but not at the bottom of the
attestation clause.
The probate petition adverted to only two (2) heirs, legatees and
devisees of the decedent, namely: petitioner himself, and one Irene Lynn
Igsolo, who was alleged to have resided abroad. Petitioner prayed that
the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
who represented herself as the attorney-in-fact of "the 12 legitimate
heirs" of the decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be
utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real property,
all centering on petitioner’s right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per records,
it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,4 and the mother of a legitimate child,
Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed
and attested to in accordance with law. She pointed out that decedent’s
signature did not appear on the second page of the will, and the will was
not properly acknowledged. These twin arguments are among the central
matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated
10 August 1992.6 The RTC favorably took into account the testimony of
the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and
Juanito Estrada. The RTC also called to fore "the modern tendency in
respect to the formalities in the execution of a will x x x with the end in
view of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositor’s arguments that
the will was not properly executed and attested to in accordance with
law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the execution
of a will, i.e., the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of giving the testator
more freedom in expressing his last wishes, this Court is persuaded to
rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at
the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong
ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya
niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang
panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana
at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan
ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed
by the subscribing witnesses at the bottom thereof, this Court is of the
view that the signing by the subscribing witnesses on the left margin of
the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies
the purpose of identification and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to note
that the will is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second page contains
the last portion of the attestation clause and acknowledgement. Such
being so, the defects are not of a serious nature as to invalidate the will.
For the same reason, the failure of the testatrix to affix her signature on
the left margin of the second page, which contains only the last portion
of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on
the will is a forgery, the testimonies of the three subscribing witnesses to
the will are convincing enough to establish the genuineness of the
signature of the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo,
who had substituted his since deceased mother-in-law, Geralda Castillo.
In a Decision dated 17 August 1995, the Court of Appeals reversed the
trial court and ordered the dismissal of the petition for probate.9 The
Court of Appeals noted that the attestation clause failed to state the
number of pages used in the will, thus rendering the will void and
undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil
Code that "the number of pages used in a notarial will be stated in the
attestation clause" is merely directory, rather than mandatory, and thus
susceptible to what he termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806
of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required to
retain a copy of the will, or file another with the office of the Clerk of
Court.
The appellate court, in its Decision, considered only one defect, the
failure of the attestation clause to state the number of pages of the will.
But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will.12 There was an incomplete attempt to
comply with this requisite, a space having been allotted for the insertion
of the number of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court,
citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will of
Andrada.14 In Uy Coque, the Court noted that among the defects of the
will in question was the failure of the attestation clause to state the
number of pages contained in the will.15 In ruling that the will could not
be admitted to probate, the Court made the following consideration
which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages and
the forging of the signatures of the testator and witnesses in the margin,
a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause
of which failed to state the number of sheets or pages used. This
consideration alone was sufficient for the Court to declare "unanim[ity]
upon the point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will
may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the attestation
clause did not state the number of pages of the will. Yet the appellate
court itself considered the import of these two cases, and made the
following distinction which petitioner is unable to rebut, and which we
adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show
that the attestation does not state the number of pages used upon which
the will is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,"
to the effect that a will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of
"Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in
the will, however, the same was found in the last part of the body of the
Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the will is written,
which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is
intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil.
30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have
the effect of invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or examination of the
will itself. But here the situation is different. While the attestation clause
does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of construction and places it
within the realm of similar cases where a broad and more liberal view
has been adopted to prevent the will of the testator from being defeated
by purely technical considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the
notarial acknowledgement in the Will states the number of pages used in
the:
"x x x
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this case, it
is discernible from the entire will that it is really and actually composed
of only two pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos" comprises the
attestation clause and the acknowledgment. The acknowledgment itself
states that "this Last Will and Testament consists of two pages including
this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is
not stated in any part of the Will. The will does not even contain any
notarial acknowledgment wherein the number of pages of the will
should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the
Civil Code in 1950, at a time when the statutory provision governing the
formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains
apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618.23 However, the
enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that
governed these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance
with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their execution
with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the qualification offered
by the Code Commission in the very same paragraph he cites from their
report, that such liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the
manner of interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy Coque and Andrada are
cited therein, along with several other cases, as examples of the
application of the rule of strict construction.28 However, the Code
Commission opted to recommend a more liberal construction through
the "substantial compliance rule" under Article 809. A cautionary note
was struck though by Justice J.B.L. Reyes as to how Article 809 should
be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes
in its assailed decision, considering that the failure to state the number
of pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of the
will itself, without the need of resorting to extrinsic evidence, will not be
fatal and, correspondingly, would not obstruct the allowance to probate
of the will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation of
the attestation clause and ultimately, of the will itself."31 Thus, a failure
by the attestation clause to state that the testator signed every page can
be liberally construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to state that the
witnesses signed in one another’s presence should be considered a fatal
flaw since the attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809. The
purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation
or omission of one or some of its pages and to prevent any increase or
decrease in the pages.33 The failure to state the number of pages equates
with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of
which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement
if the will states elsewhere in it how many pages it is comprised of, as
was the situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or
anywhere in the will itself as to the number of pages which comprise the
will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article 805.
Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of
the Code of Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator
himself or herself had decided to convey property post mortem in the
manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is
for the fruition of the testator’s incontestable desires, and not for
the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even more
critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on
the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the
notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the bottom
of the attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will
do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct.
The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages.
If an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to
a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses
sign each page of the will, from the requisite that the will be "attested
and subscribed by [the instrumental witnesses]." The respective intents
behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others,
that the witnesses are aware that the page they are signing forms part of
the will. On the other hand, the signatures to the attestation clause
establish that the witnesses are referring to the statements contained in
the attestation clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned attestation clause
results in an unattested will. Even if the instrumental witnesses signed
the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the
page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this
case signed the attestation clause itself, but not the left-hand margin of
the page containing such clause. Without diminishing the value of the
instrumental witnesses’ signatures on each and every page, the fact must
be noted that it is the attestation clause which contains the utterances
reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is written; the fact
that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another. The only proof in the will that the
witnesses have stated these elemental facts would be their signatures on
the attestation clause.
Thus, the subject will cannot be considered to have been validly attested
to by the instrumental witnesses, as they failed to sign the attestation
clause.
Yet, there is another fatal defect to the will on which the denial of this
petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the testator
and the witnesses" has also not been complied with. The importance of
this requirement is highlighted by the fact that it had been segregated
from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in
this case is equally as critical as the other cited flaws in compliance with
Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote "Nilagdaan ko at ninotario ko ngayong  10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or
deed.41 It involves an extra step undertaken whereby the signor actually
declares to the notary that the executor of a document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it
does not hew to the usual language thereof. A jurat is that part of an
affidavit where the notary certifies that before him/her, the document
was subscribed and sworn to by the executor.42 Ordinarily, the language
of the jurat should avow that the document was subscribed and sworn
before the notary public, while in this case, the notary public averred
that he himself "signed and notarized" the document. Possibly though,
the word "ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat,
the will would nonetheless remain invalid, as the express requirement of
Article 806 is that the will be "acknowledged", and not merely
subscribed and sworn to. The will does not present any textual proof,
much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent
of the testator. An acknowledgement is not an empty meaningless
act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed WHEREFORE, the petition is DENIED. Costs against petitioner.
and subscribed to the will as their own free act or deed. Such declaration
is under oath and under pain of perjury, thus allowing for the criminal SO ORDERED.
prosecution of persons who participate in the execution of spurious
wills, or those executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of certain
mindset in making the testamentary dispositions to those persons he/she
had designated in the will.

It may not have been said before, but we can assert the rule, self-evident
as it is under Article 806. A notarial will that is not acknowledged
before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a notary
public.

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

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

All told, the string of mortal defects which the will in question suffers
from makes the probate denial inexorable.
 In Re: Will of Enrique S. Lopez et al.
G.R. No. 189984               November 12, 2012
IN THE MATTER OF THE PETITION FOR THE PROBATE OF
THE LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ
RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and
VICTORIA L. TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails the March 30, 2009
Decision and October 22, 2009 Resolution of the Court of Appeals (CA)
1  2 
in CA-G.R. CV No. 87064 which affirmed the August 26, 2005
Decision of the Regional Trial Court of Manila, Branch 42 (RTC), in
3 
SP. Proc. No. 99-95225 disallowing the probate of the Last Will and
Testament of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife,
Wendy B. Lopez, and their four legitimate children, namely, petitioner
Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez
(Diana), Marybeth de Leon (Marybeth) and Victoria L. Tuazon
(Victoria) as compulsory heirs. Before Enrique’s death, he executed a
Last Will and Testament on August 10, 1996 and constituted Richard as
4 
his executor and administrator.
On September 27, 1999, Richard filed a petition for the probate of his
father's Last Will and Testament before the RTC of Manila with prayer
for the issuance of letters testamentary in his favor. Marybeth opposed
the petition contending that the purported last will and testament was not
executed and attested as required by law, and that it was procured by
undue and improper pressure and influence on the part of Richard. The
said opposition was also adopted by Victoria.
After submitting proofs of compliance with jurisdictional requirements,
Richard presented the attesting witnesses, namely: Reynaldo Maneja;
Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary
public who notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco).
The instrumental witnesses testified that after the late Enrique read and
signed the will on each and every page, they also read and signed the
same in the latter's presence and of one another. Photographs of the
incident were taken and presented during trial. Manalo further testified
that she was the one who prepared the drafts and revisions from Enrique
before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for
more than 20 years. Prior to August 10, 1996, the latter consulted him in
the preparation of the subject will and furnished him the list of his
properties for distribution among his children. He prepared the will in
accordance with Enrique's instruction and that before the latter and the
attesting witnesses signed it in the presence of one another, he translated
the will which was written in English to Filipino and added that Enrique
was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio B.
Paraon (Paraon), Officer-in-Charge of the Notarial Section, Office of the
Clerk of Court, RTC, Manila. His testimony centered mainly on their
findings that Atty. Nolasco was not a notary public for the City of
Manila in 1996, which on cross examination was clarified after Paraon
discovered that Atty. Nolasco was commissioned as such for the years
1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005, the RTC disallowed the probate
5 
of the will for failure to comply with Article 805 of the Civil Code
which requires a statement in the attestation clause of the number of
pages used upon which the will is written. It held that while Article 809
of the same Code requires mere substantial compliance of the form laid
down in Article 805 thereof, the rule only applies if the number of pages
is reflected somewhere else in the will with no evidence aliunde or
extrinsic evidence required. While the acknowledgment portion stated
that the will consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC observed that it
has 8 pages including the acknowledgment portion. As such, it
disallowed the will for not having been executed and attested in
accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC granted in
the Order dated October 26, 2005. 6
Ruling of the Court of Appeals
On March 30, 2009, the CA issued the assailed decision dismissing the
7 
appeal. It held that the RTC erroneously granted Richard's appeal as the
Rules of Court is explicit that appeals in special proceedings, as in this
case, must be made through a record on appeal. Nevertheless, even on
the merits, the CA found no valid reason to deviate from the findings of
the RTC that the failure to state the number of pages of the will in the
attestation clause was fatal. It noted that while Article 809 of the Civil
Code sanctions mere substantial compliance with the formal
requirements set forth in Article 805 thereof, there was a total omission
of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the
page on which the ratification and acknowledgment are written," the
will had actually 8 pages including the acknowledgment portion thus,
necessitating the presentation of evidence aliunde to explain the
discrepancy. Richard's motion for reconsideration from the decision was
likewise denied in the second assailed Resolution dated October 22,
8 
2009.
Hence, the instant petition assailing the propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly,
Articles 805 and 809 of the Civil Code provide:
ART. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.  (underscoring supplied)
1âwphi1
ART. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form
of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.
The law is clear that the attestation must state the number of pages used
upon which the will is written. The purpose of the law is to safeguard
against possible interpolation or omission of one or some of its pages
and prevent any increase or decrease in the pages. 9
While Article 809 allows substantial compliance for defects in the form
of the attestation clause, Richard likewise failed in this respect. The
statement in the Acknowledgment portion of the subject last will and
testament that it "consists of 7 pages including the page on which the
ratification and acknowledgment are written" cannot be deemed
10 

substantial compliance. The will actually consists of 8 pages including

its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence
aliund. On this score is the comment of Justice J.B.L. Reyes regarding
11 

the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be

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

Hence, the CA properly sustained the disallowance of the will.

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

WHEREFORE, premises considered, the petition is DENIED.

SO ORDERED.
 Labrador vs. CA
G.R. Nos. 83843-44               April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF MELECIO LABRADOR. SAGRADO LABRADOR
(Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-
appellants,
vs.
COURT OF APPEALS,   GAUDENCIO LABRADOR, and JESUS
1 acquired by devise from their father Melecio Labrador under a
LABRADOR, respondents-appellees.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will
of one Melecio Labrador is dated, as provided for in Article 810  of the
2 the trial court rendered a joint decision dated February 28, 1985,
New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of Zambales,
where he was residing, leaving behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title No. P-1652, and the
following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio,
Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a
holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by
his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a
quo a petition for the probate docketed as Special Proceeding No. 922-I
of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased
but substituted by his heirs), and Gaudencio Labrador filed an
opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in
favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a
matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land
to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had already
holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the fact
that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence,
allowing the probate of the holographic will and declaring null and void
the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to the
petitioners the sum of P5,000.00 representing the redemption price for
the property paid by the plaintiff-petitioner Sagrado with legal interest
thereon from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which
on March 10, 1988 modified said joint decision of the court a quo by
denying the allowance of the probate of the will for being undated and
reversing the order of reimbursement. Petitioners' Motion for
Reconsideration of the aforesaid decision was denied by the Court of
Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent
court, to wit:
I
 THE COURT OF APPEALS ERRED IN NOT ALLOWING
AND APPROVING THE PROBATE OF THE
HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT
THE ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into
English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as
Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at
the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is
the sea, known as the SEA as it is, and the boundary on the
NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because
it is now the time for me being now ninety three (93) years,
then I feel it is the right time for me to partition the fishponds
which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences
among themselves, those among brothers and sisters, for it is I
myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and
assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing
and it is this that should be followed and complied with in order
that any differences or troubles may be forestalled and nothing
will happen along these troubles among my children, and that
they will be in good relations among themselves, brothers and
sisters;
And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other kind
of bamboo by name of Bayog, it is their right to get if they so
need, in order that there shall be nothing that anyone of them
shall complain against the other, and against anyone of the
brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the
said property is located, the same being the fruits of our
earnings of the two mothers of my children, there shall be equal
portion of each share among themselves, and or to be benefitted
 with all those property, which property we have been able to
acquire.
That in order that there shall be basis of the truth of this writing
(WILL) which I am here hereof manifesting of the truth and of
the fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be complied
with, by all the brothers and sisters, the children of their two
mothers — JULIANA QUINTERO PILARISA and CASIANA
AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p.
46, Rollo)
The petition, which principally alleges that the holographic will is really
dated, although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.  It is worthy of note to quote the first
1âwphi1
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will
itself and executed in the hand of the testator. These requirements are
present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution of
the holographic will; hence, the will is more of an "agreement" between
the testator and the beneficiaries thereof to the prejudice of other
compulsory heirs like the respondents. This was thus a failure to comply
with Article 783 which defines a will as "an act whereby a person is
permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the
date of the execution of the will is plain from the tenor of the succeeding
words of the paragraph. As aptly put by petitioner, the will was not an
agreement but a unilateral act of Melecio Labrador who plainly knew
that what he was executing was a will. The act of partitioning and the
declaration that such partitioning as the testator's instruction or decision
to be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately regain
possession of the property for its disposition in accordance with the will.
Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private
respondents are directed to REIMBURSE the petitioners the sum of Five
Thousand Pesos (P5,000.00).
SO ORDERED.
 Ajero vs. CA
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs. THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals   in CA-G.R. CV No. 22840, dated March 30, 1992, the
1 Considering then that the probate proceedings herein
dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision
of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94,   in Sp. Proc. No. Q-37171, and the instrument
2
submitted for probate is the holographic will of the late Annie
Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam
S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand,
and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time
of its execution, she was of sound and disposing mind, not acting under
duress, fraud or undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in the
will of a house and lot located in Cabadbaran, Agusan Del Norte. He
claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
must decide only the question of identity of the will, its
due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with
the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.
For one, no evidence was presented to show that the
will in question is different from the will actually
executed by the testatrix. The only objections raised by
the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the
question of identity of will. No other will was alleged
to have been executed by the testatrix other than the
will herein presented. Hence, in the light of the
evidence adduced, the identity of the will presented for
probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed
by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and
signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the
handwriting of the testatrix have been presented and
have explicitly and categorically identified the
handwriting with which the holographic will in
question was written to be the genuine handwriting and
signature of the testatrix. Given then the aforesaid
evidence, the requirement of the law that the
holographic will be entirely written, dated and signed
in the handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity of the
testratix, (private respondent) Clemente Sand himself
has testified in Court that the testatrix was completely
in her sound mind when he visited her during her
birthday celebration in 1981, at or around which time
the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the
proper object  of her bounty, and the character of the
testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of
her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified
explicitly. And considering that she had even written a
nursing book which contained the law and
jurisprudence on will and succession, there is more
than sufficient showing that she knows the character of
the testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix
has to be resolved in favor of the allowance of probate
of the will submitted herein.
Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by
undue and improper pressure and influence on the part
of the beneficiary or of some other person, the
evidence adduced have not shown any instance where
improper pressure or influence was exerted on the
testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of
the execution of the will, i.e., at or around the time of
her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has
a mind of her own. Her independence of character and
to some extent, her sense of superiority, which has
been testified to in Court, all show the unlikelihood of
her being unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that the undue
influence or improper pressure in question herein only
refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper
subject of another proceeding. Hence, under the
circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine
in the law on succession that in case of doubt, testate
succession should be preferred over intestate
succession, and the fact that no convincing grounds
were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid
will submitted herein must be admitted to
probate.   (Citations omitted.)
3
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity."   It held
4
that the decedent did not comply with Articles 813 and 814 of the New
Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and
the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned
and undated, or signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not been authenticated
by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be
disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;
(d) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature
thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the
following cases;
(1) If the formalities required by law
have not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a will, at the time of its
execution;
(3) If it was executed through force or
under duress, or the influence of fear,
or threats;
(4) If it was procured by undue and
improper pressure and influence, on
the part of the beneficiary or of some
other person;
(5) If the signature of the testator was
procured by fraud;
(6) If the testator acted by mistake or
did not intend that the instrument he
signed should be his will at the time
of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a
will.   Thus, in a petition to admit a holographic will to probate, the only
5
issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was
executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the
time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of
Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate of
said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way
as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and acknowledgment
requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself,   as provided under Article 810 of
7
the New Civil Code, thus:
A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions  cannot be
effectuated. Such failure, however, does not render the whole testament
void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814. In
the case of Kalaw vs.  Relova 132 SCRA 237 242  (1984), this Court
held:
Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an
identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril
de 1985."   (Citations omitted.)
8
Thus, unless the unauthenticated alterations, cancellations or insertions
were made on the date of the holographic will or on testator's
signature,   their presence does not invalidate the will itself.   The lack
9 10
of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator
writes it himself in the form and with the requisites
required in Article 688.
Art. 688: Holographic wills may be executed only by
persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of the
year, month and day of its execution.
If it should contain any erased, corrected, or interlined
words, the testator must identify them over his
signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the interpretation that
only the requirements of Article 810 of the New Civil Code — and not
those found in Articles 813 and 814 of the same Code — are essential to
the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not
validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will.   In
11
the case at bench, decedent herself indubitably stated in her holographic
will that the Cabadbaran property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance
of the same in its entirety). Thus, as correctly held by respondent court,
she cannot validly dispose of the whole property, which she shares with
her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision
of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30,
1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988,
admitting to probate the holographic will of decedent Annie Sand, is
hereby REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
 Kalaw vs. Relova
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI
of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
MELENCIO-HERRERA, J.:
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 Court of First Instance of Batangas, Branch
VI, Lipa City, for the probate of her holographic Will executed on
December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of
Lipa City, being of sound and disposing mind and memory, do hereby
declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church
of Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state
a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister
of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner
ROSA K. Kalaw 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 reading:
Art. 814. In case of any insertion, cancellation, erasure
or alteration in a holographic will the testator must
authenticate the same by his full signature.
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.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination. 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, Exhibit "C"
was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the
alterations and/or insertions or additions above-
mentioned were not authenticated by the full signature
of the testatrix pursuant to Art. 814 of the Civil Code.
The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel
to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did
not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article
814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".
 WHEREFORE, the petition to probate Exhibit "C" as
the holographic will of Natividad K. Kalaw is hereby
denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were the testatrix, the denial to
probate of her holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an Order, dated
November 2, 1973, on the ground that "Article 814 of the Civil Code
being , clear and explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed
this Petition for Review on certiorari on the sole legal question of
whether or not 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 her
as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem 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.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1895." 2
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. As Manresa had stated in his commentary on
Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo
(el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el
testador bajo su firnia segun previene el parrafo tercero
del mismo, porque, en realidad, tal omision solo puede
afectar a la validez o eficacia de tales palabras, y
nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine
las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario,
se Ilegaria al absurdo de que pequefias enmiendas no
salvadas, que en nada afectasen a la parte esencial y
respectiva del testamento, vinieran a anular este, y ya
porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el
art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se
salven en la forma prevenida, paro no el documento
que las contenga, y con mayor motivo cuando las
palabras enmendadas, tachadas, o entrerrenglonadas
no tengan importancia ni susciten duda alguna acerca
del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
 Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo,  es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de
modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia
de 29 de Noviembre de 1916, que declara nulo un
testamento olografo por no estar salvada por el testador
la enmienda del guarismo ultimo del año en que fue
extendido  (Emphasis ours).
3

WHEREFORE, this Petition is hereby dismissed and the Decision of

respondent Judge, dated September 3, 1973, is hereby affirmed in toto.
No costs.

SO ORDERED.

 Nuguid vs. Nuguid

G.R. No. L-23445             June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962,
single, without descendants, legitimate or illegitimate. Surviving her
were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and
six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First
Instance of Rizal a holographic will allegedly executed by Rosario
Nuguid on November 17, 1951, some 11 years before her demise.
Petitioner prayed that said will be admitted to probate and that letters of
administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly
the legitimate father and mother of the deceased Rosario Nuguid,
entered their opposition to the probate of her will. Ground therefor, inter
alia, is that by the institution of petitioner Remedios Nuguid as universal
heir of the deceased, oppositors — who are compulsory heirs of the
deceased in the direct ascending line — were illegally preterited and that
in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for
probate and objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion
to dismiss.
1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is
a complete nullity and will perforce create intestacy of the estate of the
deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to
this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The
case is for the probate of a will. The court's area of inquiry is limited —
to an examination of, and resolution on, the extrinsic validity of the will.
The due execution thereof, the testatrix's testamentary capacity, and the
compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said
court at this stage of the proceedings — is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality
of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the
question of whether or not the will should be allowed probate. For them,
the meat of the case is the intrinsic validity of the will. Normally, this
comes only after the court has declared that the will has been duly
authenticated.2 But petitioner and oppositors, in the court below and here
on appeal, travelled on the issue of law, to wit: Is the will intrinsically a
nullity?
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the
conclusion below that the will is a complete nullity. This exacts from us
a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
 Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby give,
devise, and bequeath all of the property which I may have when I die to
my beloved sister Remedios Nuguid, age 34, residing with me at 38-B
Iriga, Q.C. In witness whereof, I have signed my name this seventh day
of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code
which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a
reproduction of Article 814 of the Civil Code of Spain of 1889, which is
similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments4 shall be
valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the
law becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento.
O no se le nombra siquiera o aun nombrandole como padre,
hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta
que en el testamento omita el testador a uno cualquiera de
aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero
forzoso. b) Que la omision sea completa; que el heredero
forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear
perspective of the problem before us, to have on hand a clear-cut
definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's
Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul
alimony provisions of divorce decree upon wife's remarriage
means to reduce to nothing; to annihilate; obliterate; blot out; to
make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
— 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d
611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with. Ex
parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid
left no descendants, legitimate or illegitimate. But she left forced heirs
in the direct ascending line her parents, now oppositors Felix Nuguid
and Paz Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they were deprived
of their legitime; neither were they expressly disinherited. This is a clear
case of preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento referring to the mandate of Article 814, now 854 of the
Civil Code.9 The one-sentence will here institutes petitioner as the sole,
universal heir — nothing more. No specific legacies or bequests are
therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula
deja de existir, en todo o en parte? No se añade limitacion
alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto prejudique a la
legitima del deseheredado Debe, pues, entenderse que la
anulacion es completa o total, y que este articulo como especial
en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de
heredero por pretericion de uno, varios o todos los forzosos en
linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion,
hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion
se anula, porque asi lo exige la generalidad del precepto legal
del art. 814, al determinar, como efecto de la pretericion, el de
que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is
no escaping the conclusion that the universal institution of petitioner to
the entire inheritance results in totally abrogating the will. Because, the
nullification of such institution of universal heir — without any other
testamentary disposition in the will — amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article
854 offers no leeway for inferential interpretation. Giving it an
expansive meaning will tear up by the roots the fabric of the statute. On
this point, Sanchez Roman cites the "Memoria annual del Tribunal
Supreme, correspondiente a 1908", which in our opinion expresses the
rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la
nulidad de la institucion de heredero, no consiente
interpretacion alguna favorable a la persona instituida en el
sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el
acto no se ha realizado, debiendo por lo tanto procederse sobre
tal base o supuesto, y consiguientemente, en un testamento
donde falte la institucion, es obligado llamar a los herederos
forzosos en todo caso, como habria que llamar a los de otra
clase, cuando el testador no hubiese distribudo todos sus bienes
en legados, siendo tanto mas obligada esta consecuencia legal
cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea
conocida la voluntad de quien testa si esta voluntad no aparece
en la forma y en las condiciones que la ley ha exigido para que
sea valido y eficaz, por lo que constituiria una interpretacion
arbitraria, dentro del derecho positivo, reputar como legatario a
un heredero cuya institucion fuese anulada con pretexto de que
esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente,
hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that,
annullment notwithstanding, "the devises and legacies shall be valid
insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will.
Nothing in Article 854 suggests that the mere institution of a universal
heir in a will — void because of preterition — would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent.
There must be, in addition to such institution, a testamentary disposition
granting him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two component parts
of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to
legacies and bequests) "pero subsistiendo ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . 13 As
Manresa puts it, annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the
institution of petitioner as universal heir. That institution, by itself, is
null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition". 15 From this, petitioner
draws the conclusion that Article 854 "does not apply to the case at bar".
This argument fails to appreciate the distinction between pretention and
disinheritance.
Preterition "consists in the omission in the testator's will of the forced
heirs or anyone of them, either because they are not mentioned therein,
or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. " 17 In Manresa's own words:
"La privacion expresa de la legitima constituye la desheredacion. La
privacion tacita de la misma se denomina pretericion." 18 Sanchez
Roman emphasizes the distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the
forced heirs. It simply omits their names altogether. Said will rather than
be labeled ineffective disinheritance is clearly one in which the said
forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are
totally different from those of disinheritance. Preterition under Article
854 of the Civil Code, we repeat, "shall annul the institution of heir".
This annulment is in toto, unless in the will there are, in addition,
testamentary dispositions in the form of devises or legacies. In
ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only
"insofar as it may prejudice the person disinherited", which last
phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which
the disinherited heirs have been illegally deprived. Manresa's expressive
language, in commenting on the rights of the preterited heirs in the case
of preterition on the one hand and legal disinheritance on the other, runs
thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les
corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited
are entitled to receive their legitimes, but that the institution of heir "is
not invalidated," although the inheritance of the heir so instituted is
reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice
Moran in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal
title in favor of the children by the second marriage should be
treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted,
will result in a complete abrogation of Articles 814 and 851 of
the Civil Code. If every case of institution of heirs may be made
to fall into the concept of legacies and betterments reducing the
bequest accordingly, then the provisions of Articles 814 and
851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at
all. And the remaining provisions contained in said article
concerning the reduction of inofficious legacies or betterments
would be a surplusage because they would be absorbed by
 Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly

to a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to
the disposition of this case, it must be observed that the
institution of heirs is therein dealt with as a thing separate and
distinct from legacies or betterments. And they are separate and
distinct not only because they are distinctly and separately
treated in said article but because they are in themselves
different. Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again
an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a

complete nullity". Article 854 of the Civil Code in turn merely nullifies
"the institution of heir". Considering, however, that the will before us
solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null.

Upon the view we take of this case, the order of November 8, 1963
under review is hereby affirmed. No costs allowed. So ordered.