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.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

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.

Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably a forged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the
Court of Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and who considered them as his
parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No.
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian
in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child
named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as
a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-
08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted
by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years
old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to
the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig,
Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her
death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-
square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate
case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo)
and the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the
probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before
the deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a
deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza,
and to place Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the
decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that
Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's
jurisdiction to issue the ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed
and attested, that it was procured by means of undue influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of
Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).

To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who
swore that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus
motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an
opposition to the probate of the will and a counter-petition for letters of administration. In that
opposition, Nenita assailed the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito
was not Marcelina's son but merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of
letters of administration because of the non-appearance of her counsel at the hearing. She moved
for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).

Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul"
the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of
February 16, 1977 (pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered
the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in which the win was written.
(In the decree of probate Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son
named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the
will, did not take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and
that she was not the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since
Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if
she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly
advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no
rights thereto and, should she persist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint.
He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the
testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the
record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline)
said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable
decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal
Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A.
Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report
dated October 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore
that the testatrix and the three attesting witnesses did not appear before him and that he notarized
the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the
notary the testatrix and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-
G.R. No. SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void win should have inherited the
decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent,
not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence
showing that the judicial acts complained of were corrupt or inspired by an intention to violate the
law, or were in persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43
Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be

inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence
and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood and
known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only
mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to
the language of the will but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent
to his salary for one month is imposed on respondent judge (his compulsory retirement falls on
December 25, 1981).

The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao
City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI
November 21, 1980, 101 SCRA 225).

SO ORDERED.

Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.

Concepcion Jr., J., is on leave.

Abad Santos, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

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

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

PARAS, C.J.:

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

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

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

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

(Sgd.) BIBIANA ILLEGIBLE

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

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

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

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

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

G.R. No. L-15153 August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.

T. de los Santos for appellee.

Climaco and Climaco for appellants.

LABARADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will
of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the
following assignment of error is made:

The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.

In view of the fact that the appeal involves a question of law the said court has certified the case to
us.

The facts as found by the trial court are as follows:

It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and
under his name appears typewritten "Por la testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page
appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso
and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and
below his signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear the
signatures of the instrumental witnesses. On the second page, which is the last page of said
last Will and Testament, also appears the signature of the three (3) instrumental witnesses
and on that second page on the left margin appears the signature of Juan Bello under whose
name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The
 will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis
supplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above
the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply
with the requirements of law prescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:

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

The clause "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," is practically the same
as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which 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 in writing and signed by the testator, 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. . . . (Emphasis supplied).

Note that the old law as well as the new require that the testator himself sign the will, or if he cannot
do so, the testator's name must be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,
700:

It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that
where the testator does not know how, or is unable, to sign, it will not be sufficient that one of
the attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person
signing in his stead in the place where he could have signed if he knew how or was able to
do so, and this in the testator's presence and by his express direction; so that a will signed in
a manner different than that prescribed by law shall not be valid and will not be allowed to be
probated.

Where a testator does not know how, 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 Doe; or in this form: "By the testator, John Doe, Richard
Doe." All this must be written by the witness signing at the request of the testator.

Therefore, under the law now in force, the witness Naval A. Vidal should have written at the
bottom of the will the full name of the testator and his own name in one forms given above.
He did not do so, however, and this is failure to comply with the law is a substantial defect
which affects the validity of the will and precludes its allowance, notwithstanding the fact that
no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that
the name of the testatrix was signed at her express direction; it is unimportant whether the person
who writes the name of the testatrix signs his own or not. Cases of the same import areas follows:
(Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the
will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the
express requirement in the law that the testator must himself sign the will, or that his name be affixed
thereto by some other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.

WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the
will denied. With costs against petitioner.

Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David and Dizon,
JJ., concur.

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.

Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

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

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

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

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

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

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

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

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

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

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

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

The petitioner decided to file the present petition.

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

Article 805 of the Civil Code provides:

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

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

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

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

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

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

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

We find the petition meritorious.

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

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

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

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

Teehankee, J, is on leave.

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.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal,
JJ., concur.
Barrera and Dizon, JJ., took no part.

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

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

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

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

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

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

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

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

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

Separate Opinions

BAUTISTA ANGELO, J., dissenting:

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

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

The following observation made by this court in the Abangan case is very fitting:

The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it i not the object of the law to restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends, any other interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary useless and frustrative of the testator's last
will, must be disregarded. (supra)

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

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

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only question is whether such signatures are
legally sufficient.

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

Feria, J., concurs.

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.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

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 against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public
were one of the attesting instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.

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 acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.

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

Cost against the appellee.

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

G.R. No. L-51546 January 28, 1980

JOSE ANTONIO GABUCAN, petitioner-appellant,

vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G.
ENCLONAR, respondents-appellees.

Ignacio A. Calingin for appellant.

AQUINO, J.:

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it
does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special
Proceeding No. 41 for the probate of the will of the late Rogaciano Gabucan, dismissed the
proceeding (erroneously characterizes as an "action")

The proceeding was dismissed because the requisite documentary stamp was not affixed to the
notarial acknowledgment in the will and, hence, according to respondent Judge, it was not
admissible in evidence, citing section 238 of the Tax Code, now section 250 of the 1977 Tax Code,
which reads:

SEC. 238. Effect of failure to stamp taxable document. — An instrument, document,

or paper which is required by law to be stamped and which has been signed, issued,
accepted, or transferred without being duly stamped, shall not be recorded, nor shall
it or any copy thereof or any record of transfer of the same be admitted or used in
evidence in any court until the requisite stamp or stamps shall have been affixed
thereto and cancelled.

No notary public or other officer authorized to administer oaths shall add his jurat or
acknowledgment to any document subject to documentary stamp tax unless the
proper documentary stamps are affixed thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-
centavo documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977
Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he
had already attached the documentary stamp to the original of the will. (See Mahilum vs. Court of
Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus to compel the lower court
to allow petitioner's appeal from its decision. In this Court's resolution of January 21, 1980 the
petition for mandamus was treated in the interest of substantial and speedy justice as an appeal
under Republic Act No. 5440 as well as a special civil action of certiorari under Rule 65 of the Rules
of Court.

We hold that the lower court manifestly erred in declaring that, because no documentary stamp was
affixed to the will, there was "no will and testament to probate" and, consequently, the alleged
"action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the
requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the
taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-admissibility of the
document, which does not bear the requisite documentary stamp, subsists only "until the requisite
stamp or stamps shall have been affixed thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the taxable document is
presented in evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does not bear
a documentary stamp, the court should have allowed plaintiff's tender of a stamp to supply the
deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs. Rodriguez, 9
Phil. 637, that the lack of the documentary stamp on a document does not invalidate such document.
See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs.
Amenabar 16 Phil. 403, 405-6.)

WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is
directed to decide the case on the merits in the light of the parties' evidence. No costs.

SO ORDERED.

Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.

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.

Bengzon, Acting C0.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ., concur.
EN BANC

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court
of First Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA,
Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS
AND DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court
of First Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA.

DE PRECILLA, petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS
DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD DEL
ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S.
Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino
for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.

Salonga, Ordoñez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del
Rosario Sarmiento, Et. Al.

SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE;
TESTATRIX’S DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF
LATER WILL.— The declarations in court of the opthalmologist as to the condition of the testatrix’s
eyesight fully establish the fact that her vision remained mainly for viewing distant objects and not
for reading print; that she was, at the time of the execution of the second will on December 29, 1960,
incapable of reading and could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.—
Upon its face, the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, apparently to save on space. Plainly, the testament
was not prepared with any regard for the defective vision of Dña. Gliceria, the typographical errors
remained uncorrected thereby indicating that the execution thereof must have been characterized by
haste. It is difficult to understand that so important a document containing the final disposition of
one’s worldly possessions should be embodied in an informal and untidy written instrument; or that
the glaring spelling errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL
CODE — READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale
behind the requirement of reading the will to the testator if he is blind or incapable of reading the will
himself is to make the provisions thereof known to him, so that he may be able to object if they are
not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will
there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the
Philippines that "if the testator is blind, the will shall be read to him twice," have not been complied
with, the said 1960 will suffer from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS;

GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE
MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.—
Considering that the alleged deed of sale was executed when Gliceria del Rosario was already
practically blind and that the consideration given seems unconscionably small for the properties,
there was likelihood that a case for annulment might be filed against the estate or heirs of Alfonso
Precilla. And the administratrix being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to belong to the estate.
This, plus her conduct in securing new copies of the owner’s duplicate of titles without the court’s
knowledge and authority and having the contract bind the land through issuance of new titles in her
husband’s name, cannot but expose her to the charge of unfitness or unsuitability to discharge the
trust, justifying her removal from the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE
RIGHT OF POSSESSION OF REAL PROPERTY." — On the matter of lis pendens, the provisions
of the Rules of Court are clear: notice of the pendency of an action may be recorded in the office of
the register of deeds of the province in which the property is situated, if the action affects "the title or
the right of possession of (such) real property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply
the fitness or unfitness of said special administratrix to continue holding the trust, it does not involve
or affect at all the title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and
81737. Clearly, the pendency of such case (L-26615) is not an action that can properly be annotated
in the record of the titles to the properties.

DECISION

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc.
No. 62618) admitting to probate the alleged last will an, testament of the late Gliceria Avelino del
Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are separate petitions for
mandamus filed by certain alleged heirs of said decedent seeking (1) to compel the probate court to
remove Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of interest,
to appoint a new one in her stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso
Precilla, married to Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of
the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as
follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no
descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old
more or less, and possessed of an estate consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned
the Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A.
del Rosario, executed on 29 December 1960, and for her appointment as special administratrix of
the latter’s estate, said to be valued at about P100,000.00, pending the appointment of a regular
administrator thereof.

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

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

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

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus
de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate
removal of the special administratrix. It was their claim that the special administratrix and her
deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated
and fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses
for the paltry sum of P30,000.00 ownership of 3 parcels of land and the improvements thereon
located on Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors
contended that since it is the duty of the administrator to protect and conserve the properties of the
estate, and it may become necessary that, an action for the annulment of the deed of sale land for
recovery of the aforementioned parcels of land be filed against the special administratrix, as wife
and heir of Alfonso Precilla, the removal of the said administratrix was imperative.

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

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

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

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

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

Foremost of the questions to be determined here concerns the correctness of the order allowing the
probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del
Rosario, during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and
written in Spanish, a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary public Jose Ayala; and
another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and
Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late
husband of petitioner special administratrix) to witness the execution of the last will of Doña Gliceria
A. del Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila, one
after the other, in the afternoon of 29 December 1960; that the testatrix at the time was apparently of
clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will,
which was already prepared, was first read "silently" by the testatrix herself before she signed it; 4
that he three witnesses thereafter signed the will in the presence of the testatrix and the notary
public and of one another. There is also testimony that after the testatrix and the witnesses to the
will acknowledged the instrument to be their voluntary act and deed, the notary public asked for their
respective residence certificates which were handed to him by Alfonso Precilla, clipped together; 5
that after comparing them with the numbers already written on the will, the notary public filled in the
blanks in the instrument with the date, 29 January 1960, before he affixed his signature and seal
thereto. 6 They also testified that on that occasion no pressure or influence has been exerted by any
person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are
evident from the records. The will appeared to have been prepared by one who is not conversant
with the spelling of Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano who
speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two of whom are fellow
Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who instructed them
to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important document,
10 and who took their residence certificates from them a few days before the will was signed. 11
Precilla had met the notary public and witnesses Rosales and Lopez at the door of the residence of
the old woman; he ushered them to the room at the second floor where the signing of the document
took place; 12 then he fetched witness Decena from the latter’s haberdashery shop a few doors
away and brought him to, the house the testatrix. 13 And when the will was actually executed
Precilla was present. 14

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

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and
illuminating. Said ophthalmologist, whose expertise was admitted by both parties, testified, among
other things, that when Doña Gliceria del Rosario saw him for consultation on 11 March 1960 he
found her left eye to have cataract (opaque lens), 15 and that it was "above normal in pressure",
denoting a possible glaucoma, a disease that leads to blindness 16 As to the conditions of her right
eye, Dr. Tamesis declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-
D from which you could inform the court as to the condition of the vision of the patient as to the right
eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which
showed that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for
the left eye with her correction 20 over 300 (20/300).

"Q In layman’s language, Doctor, what is the significance of that notation that the right had a degree
of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a minimum distance of
twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for near."cralaw
virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the decedent at the
Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only
"counting fingers," 17 at five feet. The cross-examination of the doctor further elicited the following
responses:jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or glasses?

"A After her discharge from the hospital, she was coming to my clinic for further examination and
then sometime later glasses were prescribed.

x x x
"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I prescribed — the eye
which I operated — she could see only forms but not read. That is on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye." (pages 34. 85.
t.s.n., hearing of 23 March 1966).

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

"Q When yon said that she had apparently good vision you mean that she was able to read?

"A No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this
report was made on pure recollections and I recall she was using her glasses although I recall also
that we have to give her medicines to improve her vision, some medicines to improve her
identification some more.

x x x

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

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

Against the background of defective eyesight of the alleged testatrix, the appearance of the will,
Exhibit "D", acquires striking significance. Upon its face, the testamentary provisions, the attestation
clause and acknowledgment were crammed together into a single sheet of paper, to much so that
the words had to be written very close on the top, bottom and two sides of the paper, leaving no
margin whatsoever; the word "and" had to be written by the symbol" &", apparently to save on
space. Plainly, the testament was not prepared with any regard for the defective vision of Doña
Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso",
"MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for
"acknowledge’’, remained uncorrected, thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so important a document containing the final
disposition of one’s worldly possessions should be embodied in an informal and untidily written
instrument; or that the glaring spelling errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done so. The record is thus convincing that the
supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D",
and that its admission to probate was erroneous and should be reversed.

That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to
kitchen tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the
photographs, Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page,
since the acts shown do not require vision at close range. It must be remembered that with the
natural lenses removed, her eyes had lost the power of adjustment to near vision, the substituted
glass lenses being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to
"G-3") by her indicative of ability to see at normal reading distances. Writing or signing of one’s
name, when sufficiently practiced, becomes automatic, so that one need only to have a rough
indication of the place where the signature is to be affixed in order to be able to write it. Indeed, a
close examination of the checks, amplified in the photograph, Exhibit "O", et seq., reinforces the
contention of oppositors that the alleged testatrix could not see at normal reading distance: the
signatures in the checks are written far above the printed base, lines, and the names of the payees
as well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being
in a much firmer and more fluid hand than hers.

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

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged."cralaw virtua1aw
library

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him,
so that he may be able to object if they are not in accordance with his wishes. That the aim of the
law is to insure that the dispositions of the will are properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter, not only once but twice, by two different
persons, and that the witnesses have to act within the range of his (the testator’s) other senses. 19

In connection with the will here in question, there is nothing in the records to show that the above
requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated
suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the denial by the
probate court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the deceased Doña Gliceria (Petition, G.R. No. L-26615, Annex "B").

The oppositors’ petition was based allegedly on the existence in the special administratrix of an
interest adverse to that of the estate. It was their contention that through fraud her husband had
caused the deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by
virtue of which the latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo
Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed at
P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition)
reasoned out that since the properties were already sold no longer form part of the estate. The
conflict of interest would not be between the estate and third parties, but among the different
claimants of said properties, in which case, according to the court, the participation of the special
administratrix in the action for annulment that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was precisely the
validity of the conveyance or sale of the properties. In short, if proper, the action for annulment
would have to be undertaken on behalf of the estate by the special administratrix, affecting as it
does the property or rights of the deceased. 20 For the rule is that only where there is no special
proceeding for the settlement of the estate of the deceased may the legal heirs commence an action
arising out of a right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the deed of sale, an
ordinary and separate action would have to be instituted, the matter not falling within the
competence of the probate court. 22 Considering the facts then before it, i.e., the alleged deed of
sale having been executed by Gliceria del Rosario on 10 January 1961, when she was already
practically blind; and that the consideration of P30,000.00 seems to be unconscionably small for
properties with a total assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be expected to sue herself
in an action to recover property that may turn out to belong to the estate. 22 Not only this, but the
conduct of the special administratrix in securing new copies of the owner’s duplicates of TCT Nos.
66201, 66202, and 66204, without the court’s knowledge or authority, and on the pretext that she
needed them in the preparation of the inventory of the estate, when she must have already known
by then that the properties covered therein were already "conveyed" to her husband by the
deceased, being the latter’s successor, and having the contract bind the land through issuance of
new titles in her husband’s name cannot but expose her to the charge of unfitness or unsuitableness
to discharge the trust, justifying her removal from the administration of the estate.

With respect to the orders of the court a quo denying (1) the oppositors’ motion to require the
Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.

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

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the title or the right of possession of
(such) real property." 23 In the case at bar, the pending action which oppositors seek to annotate in
the records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court
(G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned merely
with the correctness of the denial by the probate court of the motion for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the late Gliceria del Rosario. In
short, the issue in controversy there is simply the fitness or unfitness of said special administratrix to
continue holding the trust; it does not involve or affect at all the title to, or possession of, the
properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case
(L-26615) is not an action that can properly be annotated in the record of the titles to the properties.

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

Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ., concur.

Zaldivar and Castro, JJ., took no part.

Barredo, J., is on leave.

G.R. No. 74695 September 14, 1993

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

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 of the First Civil Cases Division of the
1

then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June
1983 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
2

testament with codicil of the late Brigido Alvarado.

3 4

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

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

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

A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3
January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial
Court, of Siniloan, Laguna. Petitioner, in turn, filed an Opposition on the following grounds: that the
5

will sought to be probated was not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the time of its execution due to senility
and old age; that the will was executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part of the beneficiary who stands to
get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured
by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court.
The main thrust of the appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate of the deceased's
last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following
findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was substantially complied with when
both documents were read aloud to the testator with each of the three instrumental witnesses and
the notary public following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of the drafted will was
served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of Art, 808 at
the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading
requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally
blind at the time the will and codicil were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind"
testator under Art. 808 which reads:

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

Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support
his stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research Institute), the contents
6

of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. Dr. Roasa explained that although the testator could visualize fingers at three
7

(3) feet, he could no longer read either printed or handwritten matters as of 14 December 1977, the
day of his first consultation.
8

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

quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

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

necessary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez provides an insight into the scope of the term
13

"blindness" as used in Art. 808, to wit:

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

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for
one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been
complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once,
by one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the
five-paged codicil who read the same aloud to the testator, and read them only once, not twice as
Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the single reading
suffices for purposes of the law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of
the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity
to the draft.
15
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido answered
in the affirmative. With four persons following the reading word for word with their own copies, it
16

can be safely concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually appearing on
the typewritten documents. This is especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente)
and another (Potenciano C. Ranieses) being known to him since childhood.

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

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, to wit:
18

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.

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

SO ORDERED.

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

G.R. No. L-3362 March 1, 1951

TESTATE estate of Carlos Gil, deceased. ISABEL HERREROS VDA. DE GIL, administratrix-
appellee,
vs.
PILAR GIL VDA. DE MURCIANO, oppositor-appellant.

Eligio C. Lagman for appellant.

Reyes, Albert and Agcaoili for appellee.

JUGO, J.:

The Court of First Instance of Manila admitted to probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only
question of law. Her counsel assigns the two following alleged errors:

Primer Error. — El Juzgado inferior erro al dejar de declarar que el alegado testamento de
Carlos Gil no ha sido otogar de acuerdo con la ley.

Segundo Error. — Erro finalmente a legalizar el referido testamento.

The alleged will read as follows:

Primera Pagina (1)

EN EL NOMBRE DE DIOS, AMEN

Yo, Carlos Gil, de 66 años de edad, residente de Porac, Pampanga, I. F., hallandome sano
y en pleno goce de mis facultades intelectuales, libre y expontaneamente, sin violencia,
coaccion, dolo o influencia ilegal de persona extraña, otorgo y ordeno este mi testamento y
ultima voluntad en castellano, idioma que poseo y entiendo, de la manera siguiente:

1. Declaro que durante mi matrimonio con mi esposa la hoy Isabel Herreros no tuvimos
hijos;

2. Declaro que tengo propiedades situadas en Manila y en la Provincia de Pampanga;

3. Doy y adjudico a mi querida esposa Isabel Herretos todos mis bienes ya que muebles e
inmuebles situados en Manila y en Pampanga, bajo la condicion de que cuando esta muera
y si hayan bienes remanentes heredadas por ella de mi, que dichos bienes remanentes se
adjudicaran a Don Carlos Worrel.

4. Nombro como albacea de mis bienes despues de mi fallecimiento al Dr. Galicano Coronel
a quien tengo absoluta confianza, con relevacion de fianza;

En testimonio de todo lo cual, firmo este mi testamento y en el margen izquierdo de cada

una de sus dos paginas, utiles con la clausula de atestiguamiento en presencia de los
testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de
atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac,
Pampanga, I. F., el dia 27 de Mayo de mil novecientos treinta y nueve.

CARLOS GIL
 Testificacion:

Segunda Pagina (2)

Nosotros los que suscribimos, todos mayores de edad, certificamos: que el testamento que
precede este escrito en la lengua castellana que conoce la testadora, compuesto de dos
paginas utiles con la clausula de atestiguamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y
todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA

(Fdo.) RAMON MENDIOLA

(Fdo.) MARIANO OMAÑA

Regarding the correctness and accuracy of the above-copied alleged will, the court below said:

. . . The only copy available is a printed form contained in the record appeal in case G.R. No.
L-254, entitled "Testate Estate of Carlos Gil; Isabel Herreros Vda. de Gil, petitioner and
appellant vs. Roberto Toledo y Gil, oppositor and appellee." Both parties are agreed that this
is a true and correct copy of the will. (P. 10, Record on Appeal).

The appeal being only on questions of law the above finding of the court below cannot be disputed.
The conclusions of law reached by said court are based on it. Moreover, the finding is correctly
based on the evidence of record. The parties agreed that said copy is true and correct. If it were
otherwise, they would not have so agreed, considering that the defect is of an essential character
and is fatal to the validity of the attestation clause.

It will be noted that the attestation clause above quoted does not state that the alleged testor signed
the will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise
purpose of the attestation clause is to certify that the testator signed the will, this being the most
essential element of the clause. Without it there is no attestation at all. It is said that the court may
correct a mere clerical error. This is too much of a clerical error for it effects the very essence of the
clause. Alleged errors may be overlooked or correct only in matters of form which do not affect the
substance of the statement.

It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where
are we to draw the line? Following that procedure we would be making interpolations by inferences,
implication, and even by internal circumtantial evidence. This would be done in the face of the clear,
uniquivocal, language of the statute as to how the attestation clause should be made. It is to be
supposed that the drafter of the alleged will read the clear words of the statute when he prepared it.
For the court to supply alleged deficiencies would be against the evident policy of the law. Section
618 of Act No. 190, before it was amended, contained the following provision:

. . . But the absence of such form of attestation shall not render the will invalid if it proven that
the will was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the
contents of the attestation clause, entirely suppressed the above-quoted provision. This would show
that the purpose of the amending act was to surround the execution of a will with greater guarantees
and solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by
inferences, implications, and internal circumstantial evidence? Even in ordinary cases the law
requires certain requisities for the conclusiveness of circumstantial evidence.

It is contended that the deficiency in the attestation clause is cured by the last paragraph of the body
of the alleged will, which we have quoted above. At first glance, it is queer that the alleged testator
should have made an attestation clause, which is the function of the witness. But the important point
is that he attests or certifies his own signature, or, to be accurate, his signature certifies itself. It is
evident that one cannot certify his own signature, for it does not increase the evidence of its
authenticity. It would be like lifting one's self by his own bootstraps. Consequently, the last paragraph
of the will cannot cure in any way the fatal defect of the attestation clause of the witnesses. Adding
zero to an insufficient amount does not make it sufficient.

It is said that the rules of statutory construction are applicable to documents and wills. This is true,
but said rules apply to the body of the will, containing the testamentary provisions, but not to the
attestation clause, which must be so clear that it should not require any construction.

The parties have cited pro and con several decisions of the Supreme Court, some of which are said
to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as amended
by Act No. 2645.

In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:

1. WILLS; ALLOWANCE OR DISALLOWANCE; SECTIONS 618 AND 634 OF THE CODE

OF CIVIL PROCEDURE CONSTRUED. — The right to dispose of the property by will is
governed entirely by statute. The law is here found in section 618 of the Code of Civil
Procedure, as amended. The law not alone carefully makes use of the imperative, but
cautiously goes further and makes use of the negative, to enforce legislative intention.

2. ID.; ID.; ATTESTATION. — The Philippine authorities relating to the attestation clause to
wills reviewed. The cases of Saño vs. Quintana ([1925], 48 Phil., 506), and Nayve vs. Mojal
and Aguilar ([1924], 47 Phil., 152), particularly compared. The decision in In re Will of
Quintana, supra, adopted and reaffirmed. The decision in Nayve vs. Mojal and Aguilar,
supra, modified.

3. ID.; ID.; ID.; ID. — The portion of section 618 of the Code of Civil Procedure, as amended,
which provides that "The attestation clause 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" applied and enforced.

4. ID.; ID.; ID.; ID. — An attestation clause which does not recite that the witnesses signed
the will and each and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. (Sano vs. Quintana, supra.)

In the subsequent case of Quinto vs. Morata (54 Phil., 481, 482), Judge Manuel V. Moran, now
Chief Justice of the Supreme Court, in his decision made the following pronouncement:
 . . . En la clausula de atestiguamiento del testamento en cuestion, se hace constar que los
testadores firmaron el testamento en presencia de los tres testigos instrumentales y que
estos firmaron el testamento los unos en presencia de los otros, pero no se hace constar
que dichos testigos firmaron el testamento en presencia de los testadores, ni que estos y
aquellos firmaron todas y cada una de las paginas del testamento los primeros en presencia
de los segundos y vice-versa.

En su virtud, se deniega la solicitud en la que se pide la legalizacion del alegado testamento

Exhibit A de Gregorio Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo murio
intestado.

The Supreme Court fully affirmed the decision, laying down the following doctrine:

1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. — The

attestation clause must be made in strict conformity with the requirements of section 618 of
Act No. 190, as amended. Where said clause fails to show on its face a full compliance with
those requirements, the defect constitutes sufficient ground for the disallowance of the will.
(Sano vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30). Evidence aliunde
should not be admitted to establish facts not appearing on the attestation clause, and where
said evidence has been admitted it should not be given the effect intended. (Uy Coque vs.
Navas L. Sioca, 43 Phil., 405, 409.).

2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. —

Section 618 of Act No. 190, as amended, should be given a strict interpretation in order to
give effect to the intention of the Legislature. Statutes prescribing formalities to be observed
in the execution of wills are very strictly construed. Courts cannot supply the defensive
execution of will. (40 Cyc., p. 1079; Uy Coque vs. Navas L. Sioca, supra.)

It is true that in subsequent decisions, the court has somewhat relaxed the doctrine of the Gumban
vs. Gorcho case, supra, but not to the extent of validating an attestation clause similar to that
involved herein.

In the case of Aldaba vs. Roque (43 Phil., 378), the testatrix signed the attestation clause which was
complete, and it was also signed by the two attesting witnesses. For this reason, the court said:

In reality, it appears that it is the testatrix who makes the declaration about the points
contained in the above described paragraph; however, as the witnesses, together with the
testatrix, have signed the said declaration, we are of the opinion and so hold that the words
above quoted of the testament constitute a sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that: . . . (p. 381, supra.)

The attestation clause involved herein is very different.

In the case of Dischoso de Ticson vs. De Gorotiza (57 Phil., 437), it was held that:

An attestation clause to a will, copied from a form book and reading: "We, the undersigned
attesting witnesses, whose residences are stated opposite our respective names, do hereby
certify that the testatrix, whose name is signed hereinabove, has publish unto us the
foregoing will consisting of two pages as her Last Will and Testament, and has signed the
same in our presence, and in witness whereof we have each signed the same and each
 page thereof in the presence of said testatrix and in the presence of each other," held not to
be fatally defective and to conform to the law.

This very different from the attestation clause in the case at bar.

In the case of Grey vs. Fabie * (40 Off. Gaz., 1st Supplement, 196, No. 3, May 23, 1939), the will
was objected to on the ground that, although the attestation clause stated that "each of the pages of
which the said will is composed" was signed by the testatrix at the left margin and at the foot of the
fifth page, it did not state that the signature was made in the presence of the witnesses. It was held,
however, that said deficiency was cured by the phrase "as well as by each of us in the presence of
the testatrix." The words "as well as" indicate that the testatrix signed also in the presence of the
witnesses, for the phrase "as well as" in this case is equivalent to "also." The language is clear and,
unlike the attestation clause in the present case, does not necessitate any correction. In the body of
the will the testatrix stated that she signed in the presence of each and all of the three witnesses.
This was considered as a corroboration, but it was unnecessary.

In the case of Leynez vs. Leynez (40 Off. Gaz., 3rd Supplement, 51, 52, No. 7, October 18, 1939; 68
Phil., 745), the attestation clause reads as follows:

Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento
en presencia de todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el
presente cada uno en presencia de los otros, o de los demas y de la del mismo testsador,
Valerio Leynez. El testamento consta de dos (2) paginas solamente.

The objection was that the attestation clause did not state that the testator and the witnesses signed
each and every page of the will. This fact , however, appears in the will itself. It is clear, therefore,
that in case of the will complied with all the requisites for its due execution. In the instant case,
essential words were omitted.

In the case of Alcala vs. De Villa 1 (40 Off. Gaz., 14th Supplement, 131, 134-135, No. 23, April 18,
1939), the attestation clause reads as follows:

Hacemos constar que en la fecha y pueblo arriba mencionadios otorgo el Sr. Emiliano Alcala
su ultima voluntad o testamentao compuesto de cuatro paginas incluida ya esta clasula de
atestiguamiento. Que estabamos presentes en el momento de leer y ratificar el que el
testamento arriba mencionado es su ultima voluntad o testamento compuesto de cuatro
paginasen papel de maquinilla. Que igualmente estabamos presentes cuando el firmo este
documento al pie del mismo y en el margen izquierdo de cada pagina del testador tambien
en presencia suya y de cada uno de nosotros en cada pagina y en el margen izquierdo de
esta escritura o testamento. En su testimonio firmamos abajo en prsencia del testador y de
cada uno de nosotros.

The above attestation clause is substantially perfect. The only clerical error is that it says "testador"
instead of "testamento" in the phrase "cada pagina del testador." The word "tambien" renders
unnecessary the use of the verb "firmamos."

In the case of Mendoza vs. Pilapil 2 (40 Off. Gaz., 1855, No. 9, June 27, 1941), the attestation clause
did not state the number of pages of the will. However, it was held that this deficiency was cured by
the will itself, which stated that it consisted of three pages and in fact it had three pages.
In the case of Rallos vs. Rallos (44 Off. Gaz., 4938, 4940, No. 12, October 23, 1947), decided by the
Court of Appeals, the attestation clause (translated in Spanish) reads as follows:

Nosotros, los testigos, certificamos que este que hemos firmado es el testamento y ultima
voluntad, que se ha redactado en cuatro paginas, de Numeriano Rallos, quien despues de
leer y de leer y de leerle el mencionado testamento, y despues de que ella dio su
conformidad, firmo y marco con su dedo pulgar derecho en nuestra presencia y en
presencia de cada uno de nosotros, que asimismo cada uno de nosotros, los testigos,
firmamos enpresencia de la testadora y en presencia de cada uno de nosotros.

It will be noticed that the only thing omitted is the statement as to the signing of the testatrix and the
witnesses of each and every page of the will, but the omission is cured by the fact that their
signatures appear on every page. This attestation clause is different from that involved in the present
case.

There is no reason why wills should not be executed by complying substantially with the clear
requisites of the law, leaving it to the courts to supply essential elements. The right to dispose of
property by will is not natural but statutory, and statutory requirements should be satisfied.

The right to make a testamentary disposition of one's property is purely of statutory creation,
and is available only upon the compliance with the requirements of the statute. The
formalities which the Legislature has prescribed for the execution of a will are essential to its
validity, and cannot be disregarded. The mode so prescribed is the measure for the exercise
of the right, and the heir can be deprived of his inheritance only by a compliance with this
mode. For the purpose of determining whether a will has been properly executed, the
intention of the testator in executing it is entitled to no consideration. For that purpose only
intention of the Legislature, as expressed in the language of the statute, can be considered
by the court, and whether the will as presented, shows a compliance with the statute. Estate
of Walker, 110 Cal., 387, 42 Pac., 815, 30 L. R. A., 460, 52 Am. St. Rep. 104. In re
Seaman's Estate, 80 Pac., 700, 701.)

In interpreting the legislature's thought, courts have rigidly opposed any exception tending to
weaken the basic principle underlying the law, the chief purpose of which is to see that the
testator's wishes are observed. It is possible, in some or many cases, a decedent may have
thought he had made a will, but the statute says he had not. The question is not one of his
intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . .
wills . . . truly expressing the intertions of the testator are made without observations of the
required forms; and whenever that happens, the genuine intention is frustrated. . . . The
Legislature . . . has taught of it best and has therefore determined, to run the risk of
frustrating (that intention, . . . in preference to the risk of giving effect to or facilitating the
formation of spurious wills, by the absence of forms. . . . The evil probably to arise by giving
to wills made without any form, . . ." or, in derogation of testator's wishes, fraudulently
imposing spurious wills on his effect on his estate. Churchill's Estate, 260 Pac. 94, 101, 103
Atl. 533.

It has always been the policy of this court to sustain a will if it is legally possible to do so, but
we cannot break down the legislative barriers protecting a man's property after death, even if
a situation may be presented apparently meritorious. (In Re: Maginn, 30 A. L. R., pp. 419,
420.)
In view of the foregoing, the decision appealed from is reversed, denying the probate of the alleged
will and declaring intestate the estate of the deceased Carlos Gil. With costs against the appellee. It
is so ordered.

Moran, C.J., Pablo, Bengzon, Padilla and Reyes, JJ., concur.

Separate Opinions

TUAZON, J., dissenting:

The decision takes for granted that the will was written just as it was copied in the stipulation of facts
by the parties. But counsel for appellee makes the correctness of the copy an issue thereby raising
the question of not whether the burnt will possessed the statutory requirements but whether the copy
is erroneous. Since this is a chief feature on which the appellee's case is built; since, in fact, the
objection to form of the attestation clause, with which the decision wholly deals, would disappear if
the appellee's contention were well founded, it is proper that in this dissenting opinion we should
accord the matter at least a passing notice.

It may be stated as background that the original of the will was filed in the Court of First Instance of
Manila in 1943; that in 1945, before the will came up for probate, it was destroyed by fire or looters;
that in the probate proceeding after liberation, the parties submitted an agreed statement of facts in
which the will was reproduced as copied in the record on appeal in another case docketed in this
court on appeal as G.R. No. L-254 and decided on April 30, 1948. It further appears from the record
of that case and from the decision of this court that the controversy there concerned the right of a
nephew of the testator to impugn the will, it being alleged that he was not a legal heir and had no
interest in the probate.

As transcribed in the majority decision, it will be seen that the attestation clause is truncated and
meaningless. The last of the compound sentence in incomplete, lacking an adjective phrase.
Counsel for appellee contends that the phrase "ha sido firmado por el testador" or equivalent
expression between the words "del mismo" and the words "en nuestra presencia" should be inserted
if the sentence is to be complete and have sense. The attestation clause with the inclusion of the
omitted phrase, which we italicize should read thus:

Nosotros, los que suscribimos, todos mayores de edad, certificamos que el testamento que
precede escrito en la lengua castellana que conoce la testador, compuesto de las paginadas
utiles con la clausula de atestiguamiento paginadas correlativamente en letras y numeros en
la parte superior de la casilla, asi como todos las hojas del mismo (Ha sido firmado por el
testador) en nuestra presencia y que cada de nosotros hemos atestiguado y firmado dicho
documento y todas las hojas del mismo presencia del testador y en la de cada uno de
nosotros.

It seems obvious that the missing phrase was inadvertently left out. The probabilities of error in the
copy are enhanced by the fact that the form of the will was not in controversy. The form of the will
being immaterial, it is easily conceivable that little or on care was employed in the copying thereof in
the pleading or record on appeal above mentioned. The absence of the signature of the testator on
the first page of the copy is an additional proof that little or on pain was taken to insure accuracy in
the transcription. The appearance of "la testadora" in the copy instead of "el testador" is another.
Quite aside from all this, the testator was presumed to know the law, as the decision says. Certainly,
Attorney Mariano Omaña, who drafted the whole instrument and signed it as an attesting witness,
knew the law and, by the context of the whole instrument, has shown familiarity with the rules of
grammar and ability to express his idea properly.

Read in the light of these circumstances — without mentioning the evidence or record, not objected
to, that the testator signed the will in the presence of the attesting witnesses — so important an
omission as to make the sentence senseless — granting such omission existed in the original
document-could not have been intentional or due to ignorance. The most that can be said is that the
flaw was due to a clerical mistake, inadvertance, or oversight.

There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the
record on Appeal" above mentioned is bound by the agreement. This is not an absolute rule. The
binding effect of a stipulation on the parties does not go to the extent of barring them or either of
them from impeaching it on the score of clerical error or clear mistake. That there was such mistake,
is indubitable. It is noteworthy that the opponent and appellant herself appears not to have noticed
any defect in the attestation clause as copied in the stipulation. It would seem that in the court below
she confined her attack on the will to the alleged failure of the testator to sign the first page. We say
this because it was only the alleged unsigning of the first page of the document which the trial court
in the appealed decision discussed and ruled upon. There is not the slightest reference in the
decision, direct or implied, to any flaw in the attestation clause — which is by far more important than
the alleged absence of the testator's signature on the first page.

As stated the problem posed by the omission in question is governed, not by the law of wills which
requires certain formalities to be observed in the execution, but by the rules of construction
applicable to statues and documents in general. And this rule would obtain even if the omission had
occurred in the original document and not in the copy alone. In either case, the court may and
should correct the error by supplying the omitted word or words.

In Testamentaria del finado Emilio Alcala, a similar situation arose and the Court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su

redaccion se ha incurrido en omisiones que la razon y el sentido comon pueden suplirlas sin
alterar ni tergiversar la intencion tanto del testador como la de los tres testigos que
intervinieron en el otorgamiento de la misma. Teniendo en cuenta la fraselogia de la
segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y
en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para
dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de
atestacion surtan sus efectos.

La interpritacion que se acaba de bar a la clausula de atestacion y la correccion de los

errores gramaticales de que misma adolece, incluyendo la insercion del verbo "firmamos"
que se omitio involuntariamente, esta de acuerdo con las reglas fundamentals de
interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la
intencion del que haya redactado el instrumento (art. 288, Cod. de Proc. Civ.;
Pecson contra, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pags. 225, 226.)

La solucion que se acaba de bar al asunto es la que se halla mas conforme con la justificia
en vista de que se ha presentado prueba alguna que insinue siquiera que en el
otorgamiento del testamento se ha cometido dolo o fraude con el animo de perjudiar a
 cualquiera. (Testamentaria de Emiano Alcala, 40 G. O., 14. Suplemento, No. 23, pags. 131,
132.)

From 69 C. J., 82 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will; but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50, 51, the same work says: "To aid the court in
ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules
have been established for guidance in the construction or interpretation to be placed upon such a
will, and in general a will should be construed according to these established rules of construction."
Speaking of construction of statutes which, as has been said, is applicable to construction of
documents, the same work, in Vol. 59, p. 992, says: "Where it appears from the context that certain
words have been inadvertently omitted from a statute, the court may supply such words as are
necessary to complete the sense, and to express the legislative intent.

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills, 840, 841; 57 Am. Jur., 720.)

Let us assume, for the purpose of this decision only, that the attestation clause was drawn as the
draftsman intended, that the mistake in language in said clause was not inadvertent, and consider
the case on the premise from which the court has approached it; is the decision well grounded, at
least in the light of this court's previous decisions?

At the outset, it should be pointed out that as early as 1922 a similar case, in which the validity of the
will was sustained, found its way into this court. (Aldaba vs. Roque, 43 Phil., 378). The case was
more than four-square behind the case at bar. There the departure from the statutory formality was
more radical, in that the testator took charge or writing the entire attestation clause in the body of the
will, the witnesses limiting their role to signing the document below the testator's signature. Here, at
most, the testator took away from the witness only a small part of their assigned task, leaving them
to perform the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in
banc, through Mr. Justice Villamor said (syllabus): "When the attestation clause is signed by the
witnesses to the instruments besides the testator, such attestation clause is valid and constitutes a
substantial compliance with the provisions of section 1 of Act No. 2645, even though the facts
recited in said attestation appear to have been make by the testator himself."

That was good doctrine when it was announced. We think it is good law still. That ruling should set
the present case at rest unless the court wants to discard it. On the possibility that this is the
intention, we will dwell on the subject further.

This Court noted in Dichoso de Ticson vs. De Gorostiza, (1922), 57 Phil., 437, "that there have been
noticeable in the Philippines two divergent tendencies in the law of wills — the one being planted on
strict construction and the other on liberal construction. A late example of the former views may be
found in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement
of the law. The basic case in the other direction, predicated on reason, is Abangan vs.
Abangan (1919), 40 Phil., 476, oft-cited approvingly in later decisions." In the Abangan case,
unanimous court, speaking through Mr. Justice Avanceña, later Chief Justice, observed: "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 primodial 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."

Subsequent decisions which followed and adopted the Abangan principle were numerous: Avera vs.
Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922,) 43
Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil.,
922; Nayve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs.
Cartegana (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de M.
Ozoa (1933), 57 J. F., 1007; Sebastian vs. Pañganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939)1, 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939)2, 40 Off. Gaz., 1st Suppl.
No. 3, p. 196; Leynez vs. Leynez (1939)3, 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940)4, 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941)5, 40 Off. Gaz.,
1844; Mendoza vs. Pilapil (1941)6 40 Off. Gaz., 1855; Alcala vs. De Villa (1941)7, 40 Off. Gaz., 14th
Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948)8, 46 Off. Gaz., Suppl. No. 1, p. 211.

The majority decision says, and we quote: "If we cure a deficiency by means of inferences, when are
we going to stop making inferences to supply fatal deficiencies in wills? Where are we to draw the
line?" These same questions might well have been asked in the case above cited by the opponents
of the new trends. But the so-called liberal rule does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The decisions we have cited to tell us when and where to
stop; the dividing line is drawn with precision. They say "Halt" when and where evidence aliunde to
fill a void in any part of the document is attempted. They only permit a probe, an exploration within
the confines of the will, to ascertain its meaning and to determine the existence or absence of the
formalities of law. They do not allow the courts to go outside the will or to admit extrinsic evidence to
supply missing details that should appear in the will itself. This clear, sharp limitation eliminates
uncertainly and ought to banish any fear of dire results.

The case at hand comes within the bounds thus defined. If the witnesses here purposely omitted or
forgot that the testator signed the will in their presence, the testator said that he did and the
witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and
none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this
court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance.
It has been said, and experience has known, that the mechanical system of construction has
operated more to defeat honest wills than prevent fraudulent ones. That, it must be conceded, is the
effect in this case of this court's rejection of the will under consideration. For the adverse party
concedes the genuineness of the document. At least, the genuineness is super obvious, and there is
not the slightest insinuation of undue pressure, mental incapacity of the testator of fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be
like lifting one's self by his own bootstraps." The simile, we say with due respect, does not look to us
quite well placed. Under physical law a man cannot raise his body from the ground by his own bare
hands without the aid of some mechanical appliance, at least not for more than a flitting moment. But
there is no impossibility or impropriety in one attesting to his own act unless forbidden by rules of
positive law. The rationale of our dissent is that he is not. If we were to make a metaphorical
comparison, it would be more appropriate to say that a man can and generally does himself pull the
bootstraps to put the boots on.
Coming to execution of wills, we see no legitimate practical reason for objecting to the testator
instead of the witnesses certifying that he signed the will in the presence of the latter. The will is the
testator's and the intervention of attesting witnesses is designed merely to protect the testator's and
not anybody else's interest.

If the sole purpose of the statute is to make it certain that the testator has definite and complete
intention to pass his property, and to prevent, as far as possible, any chance of substituting one
instrument for another (1 Page on Wills, 481), What better guaranty of the genuineness of the will
can there be than a certification by the testator himself in the body of the will so long as the testator's
signature is duly authenticated? Witnesses may sabotage the will by muddling it or attestation
clause. For the testator, who is desirous of making a valid will, to do so would be a contradiction. If
the formalities are only a means to an end and not the end themselves, and that end is achieved by
another method slightly different from the prescribed manner, what has been done by the testator
and the witnesses in the execution of the instant will should satisfy both law and conscience. The
chief requirements of statutes are writing, signature by the testator, and attestation and signature of
three witnesses. Whether the courts profess to follow the harsher rule, whether to follow the milder
rule, they agree on one thing — that as long as the testator performs each of those acts the courts
should require no more. (1 Page on Wills, 481, 484.)

Paras, Feria, Montemayor and Bautista Angelo, JJ., concur.

RESOLUTION

March 20, 1953

TUASON, J.:

This appeal is before us on a motion for reconsideration of this court's decision. Whereas formerly
six justices voted for reversal and five for affirmance of the probate court's order admitting the will to
probate, the vote upon reconsideration was six for affirmance and five for reversal, thereby making
the dissenting opinion, which had been filed, the prevailing rule of the case. Under the
circumstances, this resolution will largely be confined to a restatement of that dissenting opinion.

The will in question was presented for probate in the Court of First Instance of Manila in 1943 with
Roberto Toledo y Gil, decedent's nephew, and Pilar Gil Vda. de Murciano, decedent's sister
opposing the application. Toledo's legal right to intervene was questioned by the proponent of the
will, and the objection was sustained in an order which was affirmed by this court in G. R. No. L-254.
As a result of the latter decision, Toledo was eliminated from the case and did not appear when the
trial was resumed.

The proceeding seems to have held in abeyance pending final disposition of Toledo's appeal, and
early in 1945, before the application was heard on the merit, the record, along with the will, was
destroyed, necessitating its reconstitution after liberation. In the reconstitution, a stipulation of facts
was submitted in which, according to the appealed order, "both parties . . . agreed that the will as
transcribed in the record on appeal in Case G. R. No. L-254 is true and a correct copy.

The will consisted of only two pages, and the attestation clause as thus copied reads:
 NOSOTROS los que suscribimos, todos mayores de edad, certificamos: que el testamento
que precede escrito en la lengua castellana que canoce la testador, compuesto de dos
paginas utiles con la clausula de atestigamiento paginadas correlativamente en letras y
numeros en la parte superior de la casilla, asi como todas las hojas del mismo, en nuestra
presencia y que cada uno de nosotros hemos atestiguado y firmado dicho documento y
todas las hojas del mismo en presencia del testador y en la de cada uno de nosotros.

(Fdo.) ALFREDO T. RIVERA.

(Fdo.) RAMON MENDIOLA.

(Fdo.) MARIANO OMAÑA

It will be noted from the above copy that the last of the compound sentence is truncated and
meaningless. This defect is the main basis of the appellant's sole assignment of error.

Counsel for appellee contend that the phrase "han sido firmadas por el testador" or equivalent
expression between the words "del mismo" and the words "en nuestra presencia" should be inserted
if the attestation clause is to be complete and have sense. With this insertion the attestation clause
would read ". . ., asi como todas las hojas del mismo han sido firmadas por el testador en nuestra
presencia . . ." The point is well taken.

It seems obvious that the missing phrase was left out from the copy. The probabilities of error in the
copy are enhanced by the fact that the form of the Will was not controversy in Toledo's appeal. The
form of the will being immaterial, it is easily conceivable that little or no care was employed in
transcribing the document in the agreement or record on appeal. The absence of the signature of the
testator on the first page of the copy is an additional proof that little or no pain taken to insure
accuracy in the transcription. The appearance of "la testadora" in the copy instead of "el testador" is
another indication of the haste and carelessness in the transcription.

Quite aside from all this, the testator was presumed to know the law, as the trial court says.
Certainly, Attorney Mariano Omaña, who drew the instrument and signed it as an attesting witness,
knew the law and, by the context thereof, has shown familiarity with the rules of grammar and ability
to express his idea properly. In the light of these circumstances and of further fact that the clause
was brief and, by its importance, must have been written with utmost concern, so important an
omission as to make the clause or sentence senseless could not have been made, intentionally or
otherwise, in the original.

There is insinuation that the appellee in agreeing that the will read as it was "reproduced in the
Record on appeal" is bound by the agreement. This is not an absolute rule. The binding effect of a
stipulation on the parties does not go to the extent of barring either of them from impeaching it on the
score of clerical error or clear mistake. The mistake just pointed out clearly brings the case within the
exceptions of the rule. The able counsel for the proponent of the will could not possibly have
subscribed to the agreement if they had noticed the incomplete sentence in the copy without making
an objection or reservation.

The problem posed by the omission in question is governed, not by the law of wills which requires
certain formalities to be fulfilled in the execution, but by the rules of construction applicable to
statutes and documents in general. And this rule would obtain whether the omission occurred in the
original document or in the copy alone. In either case, the court may and should correct the error by
supplying the omitted word or words.
In Testamentaria del finado Emiliano Alcala, a similar situation arose and the court said:

Es evidente que leyendo la clausula de atestiguacion se nota a simple vista que en su

redaccion se ha incurrido en omisiones que la razon y el sentido cumon pueden suplirlas sin
altenar ni tergiversar la intencion tanto del testador como la de los tres testigos que
intervenieron en el otorgamiento de la misma. Teniendo en cuenta la fraseologia de la
segunda parte de la clausula se observara que las omisiones, aunque son substanciales,
consisten en meros errores gramaticales que los tribunales, en el ejercicio de su discrecion y
en la aplicacion de las reglas de interpretacion de documentos, pueden subsanarlos para
dar efectividad a la intencion y hacer que el conjunto de los terminos de la clausula de
atestacion surtan efectos.

La interpretacion que se acaba de dar a la clausula de atestacion y la correccion de los

errores gramanticales de que misma adolece, incluyedo la insercion del verbo "firmamos"
que se omitio involuntariamente, esta de acurdo con las reglas fundamentales de
interpretacion de documentos segun las cuales se debe hacer prevalecer siempre la
intencion del que haya redactado el instrumento (art 286, Cod. de Proc. Civil;
Pecson contra Coronel, 45 Jur. Fil., 224; 28 R. C. L., sec. 187, pages. 225, 226).

La solucion que se acaba de dar al asunto es la que se halla mas conforme con la justicia
en vista de que no se ha presentado prueba alguna que insinue siquiera que en el
otorgamiento del testamiento se ha cometido dolo o fraude con el animo de perjudicar a
cualquiera. Testamentaria de Emiliano Alcala, 40 Gaz. Of., 14. Supplemento, No. 23, pags.
131, 132.)

From 69 C. J. 82, 83, we quote: "Words omitted from a will may be supplied by the court whenever
necessary to effectuate the testator's intention as expressed in the will: but not where the effect of
inserting the words in the will would alter or defeat such intention, or change the meaning of words
that are clear and unequivocal." On pages 50 and 51, the same work says: "To aid the court in
ascertaining and giving effect to the testator's intention in the case of an ambiguous will, certain rules
been established for guidance in the construction or interpretation to be placed upon such a will, and
in general a will should be construed according to these established rules of construction." And
referring to construction of statues which, as has been said, is applicable to construction of
documents, C. J. S., in Vol. 59, p. 992, tells us that "Where it appears from the context that certain
words have been inadvertently from a statute, the court may supply such words as are necessary to
complete the sense, and to express the legislative intent."

Adding force to the above principle is the legal presumption that the will is in accordance with law. (2
Page on Wills 840; 57 Am. Jur., 720.)

But let it be assumed, for the sake of this decision only, that the attestation clause was drawn exactly
as it was copied in Toledo's record on appeal, was the mistake fatal? Was it, or was it not, cured by
the testator's own declaration? to wit: "En testimonio de lo cual, firmo este mi testamento y en el
margen izquierdo de cada una de sus dos paginas utiles con la clausula de atestiguamiento en
presencia de los testigos, quienes a su vez firmaron cada una de dichas paginas y la clausula de
atestiguamiento en mi presencia cada uno de ellos con la de los demas, hoy en Porac, Pampanga,
I. F., el dia 27 de marzo de mil novecientos treinta y nueve." The answer is in the negative.

As early as 1922 a similar case, in which the validity of the will was sustained, found its way into this
court. See Aldaba vs. Roque, 43 Phil., 378. That case was more than foursquare behind the case at
bar. There the departure from the statutory formality was more radical, in that the testator took
charge of writing the entire attestation clause in the body of the will, the witnesses limiting their role
to signing the document below the testator's signature. Here, at the most, the testator took away
from the witnesses only a small part of their assigned task, leaving to them the rest.

Referring to "the lack of attestation clause required by law," this court, in a unanimous decision in
banc, through Mr. Justice Villamor said in the Adalba-Roque case (syllabus):

When the attestation clause is signed by the witnesses to the instruments, besides the testator, such
attestation clause is valid and constitutes a substantial compliance with the provisions of section 1 of
Act No. 2645, even though the facts recited in said attestation clause appear to have been made by
the testator himself.

That ruling should set the present case at rest unless we want to revert to the old, expressly
abandoned doctrine, in a long line of what we believe to be better-considered decisions.

This court noted in Dichoso de Ticson vs. De Gorostiza (1922), 57 Phil., 437, "that there have been
noticeable in the Philippines two divergent tendencies in the lie of wills — the one being planted on
strict construction and the other on liberal construction. A late example of the former views be found
in the decision in Rodriguez vs. Alcala (1930), 55 Phil., 150, sanctioning a literal enforcement of the
law. The basic rule in the other direction, predicated on reason, is Abangan vs. Abangan (1919), 40
Phil., 476, oft-cited approvingly in later decisions."

In the Abangan case, a unanimous court, speaking through Mr. Justice Avanceña, later Chief
Justice, observed:

"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 primodial
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."

Subsequent decisions which followed and adopted the Abangan principle were: Avera vs.
Garcia (1921), 42 Phil., 145; Aldaba vs. Roque (1922), 43 Phil., 378; Unson vs. Abella (1922), 43
Phil., 494; Pecson vs. Coronel (1923), 45 Phil., 216; Fernandez vs. Vergel de Dios (1924), 46 Phil.,
922; Neyve vs. Mojal (1924), 47 Phil., 152; De Gala vs. Gonzales (1929), 53 Phil., 104; Rey vs.
Cartagena (1931), 56 Phil., 282; Ticson vs. Gorostiza (1932), 57 Phil., 437; Testamentaria de N.
Ozoa (1933), 57 J. F., 1007; Sebastian vs. Panganiban (1934), 59 Phil., 653; Rodriguez vs.
Yap (1939), 40 Off. Gaz., 1st Suppl. No. 3, p. 194; Grey vs. Fabia (1939), 40 Off. Gaz., 1st Suppl.,
No. 3, p. 196; Leynez vs. Leynez (1939), 40 Off. Gaz., 3rd Suppl. No. 7, p. 51; Martir vs.
Martir (1940), 40 Off. Gaz., 7th Suppl. No. 11, p. 215; Sabado vs. Fernandez (1941), 40 Off. Gaz.,
1844; Mendoza vs. Pilapil (1941), 40 Off. Gaz., 1855; Alcala vs. De Villa (1941), 40 Off. Gaz., 14th
Suppl. No. 23, p. 131; and Lopez vs. Liboro (1948), 46 Off. Gaz., Suppl. No. 1, p. 211.

It is objected that "If we cure a deficiency by means of inferences, when are we going to stop making
inferences to supply fatal deficiencies in wills? Where are we to draw the line?" These same
question might well have been asked by the opponents of the new trends in the cases above cited.
But the so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to
serious consequences. The later decisions do tell us when and where to stop; they draw the dividing
line with precision. They do not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself. They only permit a probe into the will, an
exploration within its confines, to ascertain its meaning or to determine the existence or absence of
the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish
any fear of dire results.

The case at hand comes within the bounds thus defined if the witnesses here purposely omitted or
forgot to say that the testator signed the will in their presence, the testator said that he did and the
witnesses by their signatures in the will itself said it was so. No extraneous proof was necessary and
none was introduced or taken into consideration.

To regard the letter rather than the spirit of the will and of the law behind it was the thing that led to
unfortunate consequences. It was the realization of the injustice of the old way that impelled this
court, so we believe, to forsake the antiquated, outworn worship of form in preference to substance.
It has been said, and experience has shown, that the mechanical system of construction has
operated more to defeat honest wills than prevent fraudulent ones. That, must be conceded, would
be the effect in this case if the will under consideration were rejected. For the adverse party now
concedes the genuineness of the document. At any rate, the genuineness is super obvious, and
there is not the slightest insinuation of undue pressure, mental incapacity of the testator, or fraud.

It is said that for the testator to certify that he signed the will in the witnesses' presence "would be
like lifting one's self by his own bootstraps." The simile does not look to us quite well placed. There is
no impossibility or impropriety in one attesting to his own act unless forbidden by rules of positive
law. The rationale of this decision is that he is not. If we were to make a metaphorical comparison, it
would be more correct to say that a man can and generally does himself pull the bootstraps when he
puts his boots on.

Coming to execution of wills, we see no legitimate, practical reason for objecting to the testator
instead of the witnesses certifying that he signed the will in the presence of the latter. The will is of
the testator's own making, the intervention of attesting witnesses being designed merely to protect
his interest. If the sole purpose of the statute in requiring the intervention of witnesses is to make it
certain that the testator has definite and complete intention to pass his property, and to prevent, as
far as possible, any chance of substituting one instrument for another (1 Page on Wills, 481), what
better guaranty of the genuineness of the will can there be than a certification by the testator himself
in the body of the will so long as the testator's signature is duly authenticated? Witnesses may
sabotage the will by muddling and bungling it or the attestation clause. For the testator, who is
desirous of making a valid will, to do so would be a contradiction. If the formalities are only a means
to an end and not the end themselves, and that end is achieved by another method slightly from the
prescribed manner, what has been done by the testator and the witnesses in the execution of the
instant will should satisfy both law and conscience.

A second ground of attack on the questioned will is that the first page or sheet thereof does not bear
the testator's signature. The discussion on the correctness of the copy of the attestation clause
amply answers this objection in fact, the appellee's case is much stronger on this point for the
reason that there is not only speculative but also positive basis for the conclusion that the testator's
signature was affixed to the first page of the original. Both the testator and the attesting witnesses
stated in the will and in the attestation clause, respectively, that the former signed both pages or
sheets of the testament.

Upon the foregoing consideration, the order of the probate court is affirmed with costs.

A motion dated February 17, 1953, was filed after the motion for reconsideration was deliberated
and voted upon, in behalf of the minor children of Carlos Worrel, who was a residuary legatee under
the will and who is alleged to have died on February 6, 1949. The motion prays that a guardian ad
litem be appointed for the said children, and allowed to intervene and file "A Supplementary
Memorandum in Support of Appellant's (Appellee's?) Motion for reconsideration." Counsel for the
appellant objects to the motion on the ground that the movants having only a contingent interest
under the will are not of right entitled to intervene.

As this case has already been considerably delayed and thoroughly considered and discussed from
all angles, it is the sense of the court that the children's intervention with the consequent further
delay of the decision would not serve the best interest of the parties. For this reason, the motion is
denied.

Paras, Feria, Montemayor, Bautista Angelo and Labrador, JJ., concur.

Padilla and Reyes, JJ., dissent.

JUGO, PABLO and BENGZON, JJ., dissenting:

I dissent on the ground set forth in my opinion rendered in this case.

G.R. No. 103554 May 28, 1993

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

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

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

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

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

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

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

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

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with
Special Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and the appointment of a special administrator for his
estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard
and resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it remained until the conclusion of the probate
proceedings. 6

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

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

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

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

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

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

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

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

and ruling that the attestation clause in the last will of Mateo Caballero substantially complies with
Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be

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

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

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

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

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

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death. Under the Civil Code, there are two kinds of wills which a testator may execute. the first
13 14

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

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

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

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

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

interpreted to them.

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

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

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

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

attestation clause shall be interpreted to said witnesses.

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

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

permanent form a record of the facts that attended the execution of a particular will, so that in case
of failure of the memory of the attesting witnesses, or other casualty, such facts may still be
proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will, should state (1) the number of the pages used upon which the will is
22

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

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

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

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

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

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

would result in the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following manner:

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

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

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

reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will
in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper published as a will is
only to write on the same paper the names of the witnesses, for the sole purpose of identification. 31

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

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

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other.

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

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

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will
was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity. 33

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

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

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

3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.

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

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

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

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

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

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

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

vs. Vergel de Dios, et al., and Nayve vs. Mojal, et al. all adhered to this position.
41 42

The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of Saguinsin, In re Will of43

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

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

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

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

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

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

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

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

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

mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions
of the law.

The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.

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

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

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

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

Fabia, Leynez
58
vs. Leynez, Martir
59
vs. Martir, Alcala
60
vs. De Villa, Sabado 61
vs.
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from the strict interpretation
62 63 64

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

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

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

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

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

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
829." 65

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

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

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

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

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

G.R. No. L-3497 May 18, 1951

THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF JOSE VENZON.
VALENTINA CUEVAS, petitioner-appellee,
vs.
PILAR ACHACOSO, oppositor-appellant.

Juan R. Arbizo and Antonio Gonzales for petitioner-appellee.

Mariano Trinidad and Luis J. Nepomuceno for oppositor-appellant.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Zambales admitting to probate the
last will and testament of the late Jose Venzon.

On January 19, 1946, Jose Venzon died in Iba, Zambales, leaving a will. In said will the deceased
instituted as his heirs, Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He
named therein his widow as executrix of the will. On February 1, 1946, Valentina Cuevas filed a
petition for the probate of said will.

On May 10, 1946, one Pilar Achacoso filed an alternative petition for the probate of a previous will
executed by the deceased praying therein that, if the will submitted by the widow be rejected, the
other will be admitted to probate in lieu thereof. In the previous will there are other heirs instituted,
among them petitioner Pilar Achacoso. Pilar Achacoso objected to the probate of the second will
executed by the deceased on October 10, 1945. After due hearing, the court found that the latter will
was executed in accordance with law and ordered that it be admitted to probate. Pilar Achacoso took
the case to the Court of Appeals, but the latter certified it to this Court on the ground that it involves
purely questions of law.

The main error assigned refers to the alleged lack of attestation clause in the will under
consideration, or to the fact that, if there is such attestation clause, the same has not been signed by
the instrumental witnesses, but by the testator himself, and it is claimed that this defect has the
effect of invalidating the will.

The will in question, after reciting in separate paragraphs, and under correlative numbers, the
provisions of the will, winds up with the following clause:

IN WITNESS WHEREOF, I sign this testament or last will in the municipality of Iba,
Zambales, Philippines, this 10th day of October, 1945, in the presence of the three
witnesses, namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr. Proceso Cabal
as instrumental witnesses to my signing; this testament is written in three (3) sheets marked
by letter "A", "B" and "C" consecutively on top of each sheet and upon my request and in my
presence and also in the presence of each of the aforesaid instrumental witnesses, they also
signed this testament already reffered to.
 I hereby manifest that every sheet of the aforesaid testament, on the left-hand margin as well
as the testament itself have been signed by me as also each of the witnesses has also
signed in my presence and in the presence of each other.

(Sgd.) JOSE VENZON

Witnesses:

(Sgd.) NESTORIO TRINIDAD

(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.

The clause above quoted is the attestation clause reffered to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it appears to
be an attestation made by the testator himself more than by the instrumental witnesses. This
apparent anomaly, as to affect the validity of the will, it appearing that right under the signature of the
testator, there appear the signatures of the three instrumental witnesses.

"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y

Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of an instrument or writing" (In
re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to
the signature of the testator but also to the proper execution of the will. The fact that the three
instrumental witnesses have signed the will immediately under the signature of the testator, shows
that they have in fact attested not only to the genuineness of his signature but also to the due
execution of the will as embodied in the attestation clause.

The attestation clause in question bears close similarity with the attestation clause in the will
involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation claused formed part of the
body of the will and its recital was made by the testratrix himself and was signed by her and by the
three instrumental witnesses. In upholding the validity of the will, the court said:

In reality it appears that it is the testratrix who makes the declaration about the points in the
last paragraph of the will; however as the witnesses together with the testratrix, have signed
the said declaration, we are of the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the requirements of Act No. 2645.

As was said in one case, "the object of the solemnities surrounding the execution of the wills is to
close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be intrepreted in
such a way as to attain this premordial ends. But on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's will, must be disregarded." (In re will of Tan Diuco, supra, p. 811.)
(Emphasis supplied.)

Expressive of this liberal view of interpretation, are also the following rules embodied in the new Civil
Code. These provisions, although not directly applicable, are however, significant because they
project the point of view of our legislature when it adopted them having in view the existing law and
jurisprudence on the matter.
 . 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred.

Art. 791. The words of a will are to receive an interpretation which will give to every
expressions inoperative; and of two modes of interpreting a will, that is to be preferred which
will prevent intestacy.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellant.

Paras, C.J., Feria and Tuason, JJ., concur.

Separate Opinions

JUGO, J., concurring:

I concur in the result.

MONTEMAYOR, J., dissenting:

Bengzon and Padilla, JJ., concurring and dissenting:.

The facts in this case are correctly related in the learned majority decision penned by Mr. Justice
Bautista Angelo. The main issue involved is well stated in that portion of the majority decision which
for purposes of reference quote below:

The main error assigned refers to the alleged lack of attestation clause in the will under
consideration, or to the fact that, If there is such attestation clause, the same has not been
signed by the testator himself, and it is claimed that this defect has the effect of invalidating
the will.

The will in question, after reciting in seperate paragraphs, and under correlative numbers,
the provisions of the will, winds up with the following clause:

In witness whereof, I sign this testament or last will in the municipality of Iba,
Zambales, Philippines, the 10th day of October, 1945, in the presence of the three
witnesses, namely Dr. Nestorio Trinidad, Don Baldomero Achacoso, and Mr.
Proceso Cabal as instrumental witnesses to my signing; this testament is written in
three (3) sheets marked by letter "A", "B" and "C" consecutively on top of each sheet
and upon my request and in my presence and also in the presence of each of the
afforesaid instrumental witnesses, they also signed this testament already referred
to.
 I hereby manifest that every sheet of the aforesaid testament, on the left-hand
margin as well as the testament itself have been signed by me as also each of the
witnesses has also signed in my presence and in the presence of each other.

(Sgd.) JOSE VENZON

Witnesses:

(Sgd) NESTOR TRINIDAD

(Sgd) BALDOMERO L. ACHACOSO
(Sgd) PROCESO CABAL

The majority opinion correctly states that the clause of the will above-quoted "appears to be an
attestation made by the testator himself more than by the instrumental witnesses." I go further and
say that it is an attestation by the only, and not by the witnesses. The three witnesses — Trinidad,
Achacoso and Cabal — signed under the signature of Jose Venzon under the word "witnesses."
Nothing can be more clear than that they merely witnessed the signature of the testator, nothing
more.

In an ordinary attestation clause to a will, as may be seen or verified from any legal form, the
attestation clause invariably contains a certification, affirmation or solemn statement made by the
witnesses and signed by them, to the effect that the testator signed the will and every page thereof,
in their presence, and that they also signed in the same manner and in the presence of each other.
In other words, it is they (witnesses) who speak and certify and attest. They are the ones who
assures all persons interested, including the probate court that the attestation clause signed by them
contains a true and faithful certificate or guarantee of the signing of the will by the testator and by
themselves as required by law, and that they were in a position to do so because they signed last.

Now, let us examined the clause of the will above-quoted. As the majority opinion states, it is the
testator that speak and not the attesting witnesses He certifies that not only he signed the will and
every page thereof in the presence of three witnesses, but that said three witness also signed in his
presence and in the presence of each other. Then he signed said clause and the will, and thereafter,
the three witnesses signed under the word "witnesses", evidently giving us to understand that they
saw him sign, nothing more.

From our everyday experience and observation, in ordinary written contracts or deeds, the witnesses
who signed at the foot of the instrument and after the signatures of the parties to the contract or
deed merely witness the signatures of said parties, nothing beyond that. The law does not require,
and they do not certify that they signed in the presence of each other much less, that the instrument
or deed has been executed according to legal requirements. They have nothing to do or to say about
the truth or falsity of the statements contained in the body of the document. For all they know the
vendor may not be the owner of the land he is selling, and the vendee may not in fact have paid the
amount stated as received by the vendor. All that they know and impliedly affirm and attest is that
they saw the parties sign the deed. And that is exactly what took place in the execution of the will in
question. The witnesses signed merely as witnesses to the signature of the testator. They neither
expressly nor the impliedly affirmed or certified that the assertions about the signing of the will and
every page thereof, contained in the so-called attestation clause, are true for the obvious reason that
said clause is not their own, neither have they signed it.

Let us apply a simple a simple test. Supposing that the statements contained in the so-called
attestation clause in this case contained a false narration of facts. Can and may said three witnesses
or anyone of them be properly and justly accused of falsification? I seriously doubt it. They can
truthfully and correctly say in their defense that they made no certificate, statement or narration,
Whether false or true. The certificate and attestation was made only by the testator himself and not
by them (witnesses). As admitted and stated in the majority opinion, it was he (testator) who spoke,
not they(witnesses). It may be that the testator, as it were took the very words out of their mouths,
but the utterance and the affirmation were his not theirs. He erroneously assumed their role as
attesting witnesses. But that is far from from fulfilling the requisites of the law that demands such
utterance, assurance and affirmation from three witness and from no one else.

Incidentally, it may be stated that what the testator states in said clause could not have been all true.
He says and certifies that the three witnesses signed the will in his presence and in the presence of
each other. Then he signed said certificate or statement or clause. How could he truthfully and
correctly say all this when at the time that he was making the statement or certificate and at the very
instant that he signed the same the three witnesses had not yet signed (in his presence and in the
presence of each other), for the simple reason that they signed last, and, naturally, after the testator
had made and signed his premature and untrue statement and affirmation. The sequence is
obviously wrong. In other words, the testator was basing his statement and certificate upon a mere
future presumption and expectation.

The majority bolster its stand by citing the case of Aldaba vs. Roque, 43 Phil., 378, where a similar
attestation clause was signed by the testatrix herself and this Court held that inasmuch as the
witnesses signed with the testatrix, it was a sufficient compliance with the requirements of the law on
wills. I am afraid of the doctrine laid down in that case of Aldaba vs. Roque, supra, constitutes a wide
departure from the well established rule about due execution of wills and, for the guidance of
prospective testators the bench and the bar, it is about time that we revised said doctrine. We should
strictly comply with requirements of the law about the execution of wills so as to effectively close the
door to fraud, deceit, and duress. When the law requires that the attesting witnesses make the
attestation and formal declaration, we should insist that they and not someone else, even the
testator, assume that role. Of what value can the statement or attestation or certificate about the
signatures on the will, made by the testator be? Absolutely none. It will be remembered in the sense
that it comes to life and goes into effect only after the death of the testator, not before. Naturally, in
the probate of a will, the testator can never be a witness to established and support the truth of the
statement contained in his certificate or attestation. In other words, in a contested will where
evidence is required to prove the due execution of the statement, a certificate or affirmation made by
the testator himself, besides being unnecessary and not required by law, becomes an empty and
ineffective attestation because the attestator himself is no longer available to support it by his
declaration under oath in court. That is why the law requires as attesting witnesses, three other
persons who might be expected to be yet alive and available when the will is presented for probate.
And when the will is contested the law further requires all the said three witnesses to appear in court
and testify and ratify the statement clause.

So in the case of In Re Will of Tan Diuco, 45 Phil. 807, this court speaking attesting witnesses said
that the three witnesses should sign the attestation clause "inasmuch as they alone can certify the
facts to be stated in said clause, for having taken a direct part therein, as they saw the testator sign
the will, or the person requested by him to sign all the will, or the person requested by him to sign all
the sheets of the will, that is, the document constituting his last will and testament, and affirmed that
it was signed under his express direction in the presence said witnesses and that all the sheets
thereof had also been signed by them in the presence of said testator and of each of them, . . . ."

To consider the words and statements contained in the so-called attestation clause in the presence
case, as made and uttered by the three witnesses just because they signed their names under the
testators signature, as witnesses to his signing the document, is to ascribed and impute to them as
their act and declaration an act clearly not their own, and to put into their mouth's words and
statements never uttered or spoken by them; it is to give to the clause and the signatures under it, a
significance and meaning and effect not warranted by normal and reasonable understanding and
interpretation.

Under the interpretation given to the clause in question by the majority opinion as well as the
interpretation given by this Court to a similar clause in the case of Aldaba vs. Roque, supra, in a
case where a testator makes and signs a similar attestation clause, any three persons who may
happen to have been in the same room where the testator was, and have seen him or where in a
position to have seen him affix his signature to his intended last will and testament, may afterwards
leave the room and go to their respective homes, towns and provinces; and subsequently, indeed,
even after the death of the testator, when the persons or persons who prepared the will came to
realize the necessity of attesting witnesses, they could send the document to said witnesses, in the
places where they may be found, one after the other and request said three persons to sign as
attesting witnesses; and each of said three persons may honestly, truthfully and without any mental
reservation, sign his name to the document as a witness for the reason that he had actually
witnesses the signature of the testator, for after all, that is all that he impliedly certifies by his
signature as a witness, and, yet, such signatures of the witnesses under such circumstances would
not only be without the contemplation of law but would also expressly and openly violate its
requirements, for the law provides that the attesting witnesses must certify and attest that they
signed as witnesses in the presence of the testator and in the presence of each other, facts which
are absolutely and completely wanting in the example given.

The foregoing are the reasons why i am of the opinion that the interpretation given by the majority to
the called attestation clause in the present case, as well as the interpretation given by the majority to
the so-called attestation clause in the case, as well the interpretation given by this Court to a similar
attestation clause in the case of Aldaba vs. Roque, supra, are not exactly correct and warranted.

In the possibility that the testator in the present case, or the person or persons who prepared the will
had relied upon the ruling laid down in the case of Aldaba vs. Roque, supra, and that it would now
be unfair to reject the present will when in its preparation a ruling by this Court has been followed, I
am willing to admit said will to probate and I concur in the result of the majority opinion; but I dissent
insofar as it holds out and regards the interpretation given by it of the clause in question, as a
doctrine that may be followed in future cases, especially from now on. I also believe and hold that for
the reasons stated in this occurring and dissenting opinion, the doctrine laid down in the case
of Aldaba vs. Roque, supra, should be abandoned.

G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division, promulgated on
1

May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of
Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the
deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with
the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a
will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner
as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have
been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of
Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and
the acknowledgment of the notary public were written. The signatures of the deceased Isabel
Gabriel appear at the end of the will on page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left
hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng
lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig
ng lahat at bawa't dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page
One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas,
Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her
estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her
sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel,
and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
and named as universal heir and executor, were bequeathed all properties and estate, real or
personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative

4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds:

1. That there is no iota of evidence to support the contentio that the purported will of
the deceased was procured through undue and improper pressure and influence on
the part of the petitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity
due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;

4. That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holding that the will in question was signed and executed
by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required by law, hence allow ed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the aforesaid decision and such
3

motion was opposed by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their
4

respective Memoranda, and on August 28, 1973, respondent Court, Former Special First Division,
5

by Resolution denied the motion for reconsideration stating that:

6

The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance
with law because the same was signed on several occasions, that the testatrix did
not sign the will in the presence of all the instrumental witnesses did not sign the will
in the presence of each other.

The resolution of the factual issue raised in the motion for reconsideration hinges on
the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in the
decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the
issues raised and the arguments adduced in the petition, as well as the Comment of private 8

respondent thereon, We denied the petition by Resolution on November 26, 1973, the question 9

raised being factual and for insufficient showing that the findings of fact by respondent Court were
unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration which private respondent answered by way of her Comment or Opposition filed
10 11

on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We
resolved to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witness

II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the win was improperly executed.

VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and well-
established rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), and in the more recent
12 13

cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de
Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case
of Chan vs. CA, this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it
has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals
was in disagreement with the lower court as to the weight of the evidence with a consequent
reversal of its findings of fact ...

Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot
be disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors
involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify
the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding
that the document, Exhibit "F", was executed and attested as required by law when there was
absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that
the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will and testament may be admitted
to probate and that to be a credible witness, there must be evidence on record that the witness has a
good standing in his community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first established, his
testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wigs with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and
not blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthythiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers
to the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb
and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution. And
We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to
wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, 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, While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness
in addition to being competent under Articles 820 and 821 must also be a credible witness under
Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are credible
in themselves, that is, that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this
being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it
was in existence at the time of, and not revoked before, the death of the testator, still the provisions
of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.
" emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of
the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a
win, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that
said witness must be credible, that is to say, his testimony may be entitled to credence. There is a
long line of authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or
other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'competent

witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p.
341).

Expression 'credible witness' in relation to attestation of wins means 'competent

witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the
will, are legally competent to testify, in a court of justice, to the facts attested by
subscribing the will, the competency being determined as of the date of the execution
of the will and not of the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent

witnesses — that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering them
incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the
appreciation of his testimony and arises from the belief and conclusion of the Court that said witness
is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness
is one thing, and it is another to be a credible witness, so credible that the Court must accept what
he says. Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We
state the rule that the instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821
and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was
fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses
were "credible witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that
the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We win consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing
all the witnesses without previous appointment for the preparation and execution of the win and that
it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he
explained that he was available for any business transaction on that day and that Isabel Gabriel had
earlier requested him to help her prepare her will. The finding of the appellate court is amply based
on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while
Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14,
1961. The respondent Court correctly observed that there was nothing surprising in these facts and
that the securing of these residence certificates two days and one day, respectively, before the
execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the
spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife,
Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the
will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of
her will and that he told her that if she really wanted to execute her will, she should bring with her at
least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of
sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit '
L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find
no such evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the evidence found by the appellate court,
thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued"
and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274
issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the
three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of
the appellant Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were
only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after
the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the
testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or evidence appearing on record.
Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until
June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the
light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus:
"On the contrary, the record is replete with proof that Matilde Orobia was physically present when
the will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya
and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons
to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that — day is
purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of
the same day in Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such
fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the win was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly
held: "The trial court gave undue importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke
of this occasion. Hence, their Identification of some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment
of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia
was admittedly no longer present was wholly unnecessary if not pointless. What was important was
that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We
agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not
require picture-taking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in

their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described
as "elite" which to him meant big letters which are of the type in which the will was typewritten but
which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
Cifra, Jr.— these are indeed unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not alter the probative value of
their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much 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." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is
subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse
the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the
record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion
based not on facts but on inferences; that the trial court gave undue importance to the picture-
takings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to
witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of
fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again
We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested
the will by signing her name at the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the
will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said
lawyer she had no note or document. This fact jibes with the evidence — which the trial court itself
believed was unshaken — that Isabel Gabriel was of sound disposing memory when she executed
her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee
the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her
estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on a misapprehension
of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by
substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to which We have disagreed and,
therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out good. The lawyer told her that this
cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best evidence of the will making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and
we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,
with costs against the petitioner.

SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ., concur.