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[G.R. No. L-18979. June 30, 1964.

]
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTA. CELSO ICASIANO, Petitioner-Appellee, v. NATIVIDAD
ICASIANO and ENRIQUE ICASIANO,Oppositors-Appellants.
SYLLABUS
1. WILLS; PROBATE; POLICY OF COURT AGAINST UNDUE CURTAILMENT OF
TESTAMENTARY PRIVILEGE. The precedents cited in the case at bar
exemplify the Courts policy to require satisfaction of the legal requirements in
the probate of a will in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of the testamentary privilege.
2. ID.; ID.; HANDWRITING EXPERT MUST HAVE SUFFICIENT STANDARDS OF
COMPARISON TO PROVE FORGERY OF TESTATRIXS SIGNATURE. The
opinion of a handwriting expert trying to prove forgery of the testatrixs
signature fails to convince the court, not only because it is directly contradicted
by another expert but principally because of the paucity of the standards used
by him (only three other signatures), considering the advanced age of the
testatrix, the evident variability of her signature, and the effect of writing
fatigue.
3. ID.; ID.; VARIANCE IN INK COLOR NOT RELIABLE WHEN WRITINGS
AFFIXED TO DIFFERENT KINDS OF PAPER. The slight variance in blueness of
the ink in the admitted and questioned signatures does not appear reliable,
considering that the standard and challenged writings were affixed to different
kinds of paper.
4. ID.; ID.; FRAUD OF UNDUE INFLUENCE, DIVERSITY OF APPORTIONMENT
AND PROHIBITION AGAINST CONTEST NO EVIDENCE OF. Neither diversity
of apportionment nor prohibition against contest is evidence of fraud or undue
influence in the execution of a will.
5. ID.; ID.; FRAUD AND UNDUE INFLUENCE ARE REPUGNANT ALLEGATIONS.
Allegation of 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.
6. ID.; ID.; INADVERTENT FAILURE OF AN ATTESTING WITNESS TO AFFIX HIS
SIGNATURE TO ONE PAGE OF A WILL NOT FATAL. The inadvertent failure of
an attesting 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.
7. ID.; ID.; SIGNED CARBON DUPLICATE OF WILL NEEDS NO PUBLICATION.
That the signed carbon duplicate of a will 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, where the
amended petition did not substantially alter the first one filed but merely
supplemented it by disclosing the existence of said duplicate.

DECISION
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 Ino, 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
Ino 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 Ino, 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.
On February 18, 1959, Enrique Ino, a son of the testatrix, also filed a
manifestation adopting as his own Natividads 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 Ino de
Gomez and Enrique Ino 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 Ino 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.
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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 Ino at Pedro Guevara Street, Manila,
published before and attested by three instrumental witnesses, namely;
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Dr. 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 decedents last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Ino, and a little girl. Of the
said three instrumental witnesses to the execution of the decedents 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 attorney
Fermin Samson, who actually prepared the document. The latter also testified
upon cross examination that he prepared one original and two copies of Josefa
Villacortes 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 testatrixs 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 copy were duly acknowledged before Notary Public Jose
Oyengco Ong 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 occasion, 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 appealing in the duplicate original were not written
by the same hand, 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 writers 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 experts
opinion that 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 there 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 after 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 that 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 oppositors 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 v. Ubag, 14 Phil. 163; Pecson v. Coronel, 45 Phil. 216).
Diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The testamentary
disposition 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 occasion. It is


also well to note that, as remarked by the Court of Appeals in Sideco v. 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 v.
Murciano, 88 Phil. 260; 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
v. Abangan, 41 Phil. 476); and that despite the requirement for the correlative
lettering of the pages of a will, the failure to mark the first page either by
letters or numbers is not a fatal defect (Lopez v. Liboro, 81 Phil. 429). These
precedents exemplify the Courts policy to require satisfaction of the legal
requirements in order to guard against fraud and bad 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 the original because it lacked one signature in its third
page, it is easily discerned that oppositors-appellants run here into a dilemma:
if the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to the signed duplicate
need not be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one signature in the
third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented
it by disclosing the existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.
[G.R. No. L-36033. November 5, 1982.]
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA PEREZ, (deceased): APOLONIO TABOADA, Petitioner, v.
HON. AVELINO S. ROSAL, as Judge of the Court of First Instance of
Southern Leyte, (Branch III, Maasin), Respondent.
SYNOPSIS
Petitioner filed a petition for probate of the will of the late Dorotea Perez and
presented as evidence the alleged will and the testimony of one of the
subscribing witnesses thereto. However, the trial court disallowed the will for
want of formality in its execution because the will was signed at the bottom of
the page solely by the testatrix and at the left hand margin by three
instrumental witnesses. Respondent judge interpreted Article 805 of the Civil
Code to require that, for a notarial will to be valid, it is not enough that only
the testatrix signs at the "end" of the will but all the three subscribing
witnesses must also sign at the same place or at the end, in the presence of
the testatrix and of one another, because the attesting witnesses to the will
attest not merely the will itself but also the signature of the testator.
Petitioners motion for reconsideration and subsequent motion for the
appointment of special administrator were likewise denied.
On certiorari, the Supreme Court held a) that the objects of attestation and
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 a subscribing witness to be the same will executed by the
testatrix; and b) that the failure of the attestation clause to state the number
of pages used in writing the will would have been a fatal defect were it not for
the fact that it is really and actually composed of only two pages duly signed
by the testatrix and her instrumental witnesses.
Petition granted. Assailed orders of probate court set aside. Respondent court
is ordered to allow probate of the will and to conduct further proceedings.
SYLLABUS

1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES;


ATTESTATION AND SUBSCRIPTION; DEFINED. Under Article 805 of the Civil
Code, the will must be subscribed or signed at its end by the testator himself
or by the testators 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. Attestation
consists in witnessing the testators 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).
2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. 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.
3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. 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 provision 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).
4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER
OF PAGES USED IN WRITING THE WILL IS FATAL; EXCEPTION; CASE AT BAR.
The failure of the wills attestation clause to state the number of pages used
in writing the will would have been a fatal defect were it not for the fact that, in
this case, it is discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental
witnesses (See Singson v. Florentino, Et. Al. (192 Phil. 161, 1641 and Ino v.
Ino, [11 SCRA 422, 429].)
DECISION
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 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 13) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioners compliance with the
requirement of publications, the trial court commissioned the branch clerk of
court to receive the petitioners 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 petitioners 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:

jgc:chanrobles.com .ph

"Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
"The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
"The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and
signed the with 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 them."
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The respondent Judge interprets the above-quoted provision of law to require


that, for a notarial will to be valid, it is not enough that only the testatrix signs
at the "end" but all the three subscribing witnesses must also sign at the same
place or at the end, in the presence of the testatrix and of one another because
the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where
the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for
the extrinsic validity of the will that the signatures of the subscribing witnesses
should be specifically located at the end of the will after the signature of the
testatrix. He contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where the
signatures are to be found as long as this space or particular location wherein
the signatures are found is consistent with good faith and the honest frailties of
human nature.
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 testators 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 testators 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 it not for the defect in the place of signatures of the witnesses, he would
have found the testimony sufficient to establish the validity of the will.
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.
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We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire will that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is marked as "Pagina
dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two

pages including this page."

[G.R. NO. 122880 : April 12, 2006]

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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:

FELIX AZUELA, Petitioner, v. COURT OF APPEALS, GERALDA AIDA


CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.

"The law referred to is Article 618 of the Code of Civil Procedure, as amended
by Act No. 2645, which requires that the attestation clause shall state the
number of pages or sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard against the possibility
of interpolation or omission of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be bequeathed (In re will of
Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil. 405; Gumban v.
Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. 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 passes
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."

DECISION

jgc:chanrobles.com .ph

TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed
by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of
80. In refusing to give legal recognition to the due execution of this document,
the Court is provided the opportunity to assert a few important doctrinal rules
in the execution of notarial wills, all self-evident in view of Articles 805 and 806
of the Civil Code.
A will whose attestation clause does not contain the number of pages
on which the will is written is fatally defective. A will whose
attestation clause is not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three
defects is just aching for judicial rejection.

cralaw virtua1aw library

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

". . . 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 attest to the full
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. v.
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 the 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 will and to conduct further proceedings in accordance with
this decision. No pronouncement of costs.
SO ORDERED.

There is a distinct and consequential reason the Civil Code provides a


comprehensive catalog of imperatives for the proper execution of a notarial
will. Full and faithful compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes another safeguard to
the validity of notarial wills - that they be acknowledged before a notary public
by the testator and the witnesses. A notarial will executed with indifference to
these two codal provisions opens itself to nagging questions as to its
legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela
sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read
in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at

memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at


binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sangayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat
(Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa
akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang
lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block
24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubali't at kondiciones;
Pangatlo - Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng
huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang maglagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo,
1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana
sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't
dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa
sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa't dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod
ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation
clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of
the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was
alleged to have resided abroad. Petitioner prayed that the will be allowed, and
that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several
court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioner's right to occupy the
properties of the decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E.
Igsolo, who predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedent's signature
did not appear on the second page of the will, and the will was not properly
acknowledged. These twin arguments are among the central matters to this
petition.

After due trial, the RTC admitted the will to probate, in an Order dated 10
August 1992.6 The RTC favorably took into account the testimony of the three
(3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada.
The RTC also called to fore "the modern tendency in respect to the formalities
in the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective, rebutted
oppositor's arguments that the will was not properly executed and attested to
in accordance with law.
After a careful examination of the will and consideration of the testimonies of
the subscribing and attesting witnesses, and having in mind the modern
tendency in respect to the formalities in the execution of a will, i.e., the
liberalization of the interpretation of the law on the formal requirements of a
will with the end in view of giving the testator more freedom in expressing his
last wishes, this Court is persuaded to rule that the will in question is authentic
and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end
of the will after the signature of the testatrix, the following statement is made
under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat
at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawa't dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial compliance
with the requirements of the law.
On the oppositor's contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of
the will containing the attestation clause and acknowledgment, instead of at
the bottom thereof, substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositor's argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to note that
the will is composed of only two pages. The first page contains the entire text
of the testamentary dispositions, and the second page contains the last portion
of the attestation clause and acknowledgement. Such being so, the defects are
not of a serious nature as to invalidate the will. For the same reason, the
failure of the testatrix to affix her signature on the left margin of the second

page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor's assertion that the signature of the testatrix on the
will is a forgery, the testimonies of the three subscribing witnesses to the will
are convincing enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the trial court and
ordered the dismissal of the petition for probate. 9 The Court of Appeals noted
that the attestation clause failed to state the number of pages used in the will,
thus rendering the will void and undeserving of probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that
"the number of pages used in a notarial will be stated in the attestation clause"
is merely directory, rather than mandatory, and thus susceptible to what he
termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a
copy of the will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of
the attestation clause to state the number of pages of the will. But an
examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will.12 There was an incomplete attempt to comply with
this requisite, a space having been allotted for the insertion of the number of
pages in the attestation clause. Yet the blank was never filled in; hence, the
requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing
in the process Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy
Coque, the Court noted that among the defects of the will in question was the
failure of the attestation clause to state the number of pages contained in the
will.15 In ruling that the will could not be admitted to probate, the Court made
the following consideration which remains highly relevant to this day: "The
purpose of requiring the number of sheets to be stated in the attestation clause
is obvious; the document might easily be so prepared that the removal
of a sheet would completely change the testamentary dispositions of
the will and in the absence of a statement of the total number of
sheets such removal might be effected by taking out the sheet and
changing the numbers at the top of the following sheets or pages. If, on
the other hand, the total number of sheets is stated in the attestation clause
the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of
which failed to state the number of sheets or pages used. This consideration
alone was sufficient for the Court to declare "unanim[ity] upon the point that
the defect pointed out in the attesting clause is fatal." 17 It was further observed
that "it cannot be denied that the x x x requirement affords additional security
against the danger that the will may be tampered with; and as the Legislature
has seen fit to prescribe this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada
v. Hon. Rosal,20wherein the Court allowed probate to the wills concerned
therein despite the fact that the attestation clause did not state the number of
pages of the will. Yet the appellate court itself considered the import of these
two cases, and made the following distinction which petitioner is unable to
rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is
written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel


Singson v. Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] v. Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid
even if the attestation does not contain the number of pages used upon which
the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the
case of "Manuel Singson v. Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in the
will, however, the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number
of pages or sheets upon which the will is written, which requirement has been
held to be mandatory as an effective safeguard against the possibility of
interpolation or omission of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be bequeathed (In re Will of
Andrada, 42 Phil. 180; Uy Coque v. Navas L. Sioca, 43 Phil., 405; Gumban v.
Gorcho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. Sarmiento,
66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the
effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But
here the situation is different. While the attestation clause does not state the
number of sheets or pages upon which the will is written, however, the last
part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and
more liberal view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda v. Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible
from the entire will that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is marked as "Pagina
dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two
pages including this page" (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is not
stated in any part of the Will. The will does not even contain any notarial
acknowledgment wherein the number of pages of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal
requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of
pages of the will is extant from Section 618.23However, the enactment of the
Civil Code in 1950 did put in force a rule of interpretation of the requirements
of wills, at least insofar as the attestation clause is concerned, that may vary
from the philosophy that governed these two cases. Article 809 of the Civil
Code states: "In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission,
which stated that "the underlying and fundamental objective permeating the
provisions on the [law] on [wills] in this project consists in the [liberalization]
of the manner of their execution with the end in view of giving the testator
more [freedom] in [expressing] his last wishes. This objective is in accord with
the [modern tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the qualification offered by the
Code Commission in the very same paragraph he cites from their report, that
such liberalization be "but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper pressure and
influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the
attestation clause in wills.27 Uy Coque and Andrada are cited therein, along
with several other cases, as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to recommend a more
liberal construction through the "substantial compliance rule" under Article 809.
A cautionary note was struck though by Justice J.B.L. Reyes as to how Article
809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required to sign did so
in the presence of each other must substantially appear in the

attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages of
the will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is
that omission which can be supplied by an examination of the will itself,
without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself."31 Thus, a failure by the attestation clause to state
that the testator signed every page can be liberally construed, since that fact
can be checked by a visual examination; while a failure by the attestation
clause to state that the witnesses signed in one another's presence should be
considered a fatal flaw since the attestation is the only textual guarantee of
compliance.32
The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the
law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages. 33 The
failure to state the number of pages equates with the absence of an averment
on the part of the instrumental witnesses as to how many pages consisted the
will, the execution of which they had ostensibly just witnessed and subscribed
to. Following Caneda, there is substantial compliance with this requirement if
the will states elsewhere in it how many pages it is comprised of, as was the
situation in Singsonand Taboada. However, in this case, there could have been
no substantial compliance with the requirements under Article 805 since there
is no statement in the attestation clause or anywhere in the will itself as to the
number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with
the formal requirements as enumerated under Article 805. Whatever the
inclinations of the members of the Code Commission in incorporating Article
805, the fact remains that they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey propertypost mortem in the
manner established in the will.35 The transcendent legislative intent, even

as expressed in the cited comments of the Code Commission, is for the


fruition of the testator's incontestable desires, and not for the
indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the
left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the notary
public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the
three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on
the left-hand margin."37 While three (3) Justices38 considered the signature
requirement had been substantially complied with, a majority of six (6),
speaking through Chief Justice Paras, ruled that the attestation clause had not
been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do
not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of
the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as
their signatures to the attestation clause. This is untenable, because said
signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence
of the testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign
each page of the will, from the requisite that the will be "attested and
subscribed by [the instrumental witnesses]." The respective intents behind
these two classes of signature are distinct from each other. The signatures on
the left-hand corner of every page signify, among others, that the witnesses
are aware that the page they are signing forms part of the will. On the other

hand, the signatures to the attestation clause establish that the witnesses are
referring to the statements contained in the attestation clause itself. Indeed,
the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing the
unsigned attestation clause, such signatures cannot demonstrate these
witnesses' undertakings in the clause, since the signatures that do appear on
the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses' signatures on each and every page, the fact must be noted that it is
the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator,
who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The only
proof in the will that the witnesses have stated these elemental facts would be
their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has
also not been complied with. The importance of this requirement is highlighted
by the fact that it had been segregated from the other requirements under
Article 805 and entrusted into a separate provision, Article 806. The nonobservance of Article 806 in this case is equally as critical as the other cited
flaws in compliance with Article 805, and should be treated as of equivalent
import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila."40 By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one who
has executed a deed in going before some competent officer or court and
declaring it to be his act or deed.41 It involves an extra step undertaken
whereby the signor actually declares to the notary that the executor of a
document has attested to the notary that the same is his/her own free act and
deed.
It might be possible to construe the averment as a jurat, even though it does
not hew to the usual language thereof. A jurat is that part of an affidavit where
the notary certifies that before him/her, the document was subscribed and
sworn to by the executor.42 Ordinarily, the language of the juratshould avow
that the document was subscribed and sworn before the notary public, while in

this case, the notary public averred that he himself "signed and notarized" the
document. Possibly though, the word "ninotario" or "notarized" encompasses
the signing of and swearing in of the executors of the document, which in this
case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the
will would nonetheless remain invalid, as the express requirement of Article
806 is that the will be "acknowledged", and not merely subscribed and sworn
to. The will does not present any textual proof, much less one under oath, that
the decedent and the instrumental witnesses executed or signed the will as
their own free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an empty
meaningless act.43 The acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the law that they had
executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the
criminal prosecution of persons who participate in the execution of spurious
wills, or those executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of certain mindset in
making the testamentary dispositions to those persons he/she had designated
in the will.
It may not have been said before, but we can assert the rule, self-evident as it
is under Article 806.A notarial will that is not acknowledged before a
notary public by the testator and the witnesses is fatally defective,
even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully
satisfied by the will in question. We need not discuss them at length, as they
are no longer material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left margin,
except the last; and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this case, the decedent,
unlike the witnesses, failed to sign both pages of the will on the left margin,
her only signature appearing at the so-called "logical end" 44 of the will on its
first page. Also, the will itself is not numbered correlatively in letters on each
page, but instead numbered with Arabic numerals. There is a line of thought
that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not
decisive to the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the requirements
under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from
makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.


SO ORDERED.
[G.R. No. 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, v. HON. COURT OF APPEALS
and WILLIAM CABRERA, as Special Administrator of the Estate of
Mateo Caballero, Respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILL; DEFINED. 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 (Rivera v. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code).
2. ID.; ID.; ID.; KINDS; REQUIREMENTS FOR EACH. Under the Civil Code,
there are two kinds of wills which a testator may execute. The first kind is the
ordinary or attested will, the execution of which is governed by Articles 804 to
809 of the Code. In addition to the requirements under Article 805, the
ordinary will must be acknowledged before a notary public by the testator and
the attesting witnesses (Art. 806, Civil Code), hence it is likewise known as a
notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should
designate two persons who will 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 (Art. 808, Civil Code). The other kind of will is the holographic
will, which Article 810 defines as one that is entirely written, dated, and signed
by the hand of the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of
wills is that they should be in writing and must have been executed in a
language or dialect known to the testator (Art. 804, Civil Code).
3. ID.; ID.; ID.; ATTESTATION CLAUSE; CONSTRUED. 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 of the same (Testate Estate of Paula Toray, 87 Phil. 139 [1950]). It is
a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed.

(Vda. de Ramos, Et. Al. v. Court of Appeals, et. al., 81 SCRA 393 [1978]). It is
made for the purpose of preserving in a 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 (Leynez v. Leynez, 68 Phil. 745 [1939]).
4. ID.; ID.; ID.; ID.; ATTESTATION AND SUBSCRIPTION, DIFFERENTIATED.
It will be noted that Article 805 requires that the witnesses 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 that act of the
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 (Hill v. Davis,
167 P. 465, 466, 64 Okl. 253, L.R.A. 1918 B 687).
5. ID.; ID.; ID.; ID.; REQUIREMENTS; PURPOSES THEREOF. 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 pages used
upon which the will is 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; (In the matter of the Estate of Sanguinsin, 41 Phil. 875
[1920]; In re Will of Andrada, 42 Phil. 180 [1921]) whereas the subscription of
the signatures of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the will is
the very same instrument executed by the testator and attested to by the
witnesses. (Testate Estate of Paula Toray, 87 Phil. 611 [1938]). Further, by
attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. (Gonzales v.
Gonzales de Carungcong, 90 Phil. 444 [1951]). The attestation clause,
therefore, provides strong legal guaranties for the due execution of a will and
to insure the authenticity thereof (Echevarria v. Sarmiento, 66 Phil. 611
[1938]). As it appertains only to the witnesses and not to the testator, it need
be signed only by them (Abangan v. Abangan, 40 Phil. 476 [1919]). Where it is
left unsigned, it would result in the invalidation of the will as it would be
possible and easy to add the clause on a subsequent occasion in the absence of
the testator and the witnesses. (Cagro v. Cagro, 92 Phil. 1032 [1953]). In
Taboada v. Rosal, (118 SCRA 195 [1982]), we clarified that attestation consists
in witnessing the testators 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. 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.
6. ID.; ID.; ID.; ID.; ID.; NOT SATISFIED IN CASE AT BAR. 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 Article 809 of the Civil Code. 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, the defect is not
only in the form or the language of the attestation 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 any statement, or an implication thereof, that the
attesting witnesses did actually bear witness to the signing by the testator of
the will and all 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.
7. ID.; ID.; ID.; ID.; ID.; RULE ON SUBSTANTIAL COMPLIANCE UNDER ART.
809 OF THE CIVIL CODE; NOT APPLICABLE IN CASE AT BAR. The rule on
substantial compliance in Article 809 cannot be invoked or relied on by
respondents since it presupposes that the defects in the attestation clause can
be cured or supplied by the text of the will or a consideration of matters
apparent therefrom which would provide the data not expressed in the
attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were
actually complied with in the execution of the will. In other words, the 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 only by extrinsic evidence thereof, since an

overall appreciation of the contents of the will yields no basis whatsoever from
which 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 indirection what in law he cannot do directly. 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.
DECISION
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. 1 It was
declared therein, among other things, that the testator was leaving by way of
legacies and devises his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the testator. 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 or another. On
May 29, 1980, the testator passed away before his petition could finally be
heard by the probate court. 3 On February 25, 1981, Benoni Cabrera, one of
the legatees named in the will, sought his appointment as special administrator
of the testators 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 for intestate proceedings
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 testators 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 proceedings 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
testators will on the ground that on the alleged date of its execution, the
testator was already in a 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 they 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:
jgc:chanroble s.com.ph

". . . 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 this 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 law." 9
Undaunted by said judgment of the probate court, petitioners elevated the case
to 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 10 affirming
that of the trial court, and ruling that the attestation clause in the last will of
Mateo Caballero substantially complies with Article 805 of the Civil Code,
thus:

end thereof by the testator himself or by the testators 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.

jgc:chanrobles.com .ph

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


considered as having substantially 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 testator, Mateo Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters on 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 said ruling of respondent court,
but the same was denied in the latters resolution of January 14, 1992, 12
hence this appeal now before us. Petitioners assert that respondent court has
ruled upon said issue in a manner not in accord with the law and the 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
explain, 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. 13 Under the Civil Code, there are
two kinds of wills which a testator may execute. 14 The first 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
jgc:chanrobles.com .ph

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

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


interpreted to them."
cralaw virtua1aw library

In addition, the ordinary will must be acknowledged before a notary public by


the testator and the attesting witnesses, 15 hence it is likewise known as a
notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires
that he must personally read the will, if able to do so. Otherwise, he should
designate two persons who will 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 hand of the testator himself.
This kind of will, unlike the ordinary type, requires no attestation by witnesses.
A common requirement in both kinds of wills 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. 18 The last paragraph of Article 805 merely requires that, in such a
case, the 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 of the same. 19 It is a separate
memorandum or record of the facts surrounding the conduct of execution and
once signed by the witnesses, it gives affirmation to the fact that compliance
with the essential formalities required by law has been observed. 20 It is made
for the purpose of preserving in a 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, 22 should state (1) the number
of pages used upon which the will is 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; 23 whereas the subscription of the signatures of the testator and
the attesting witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses. 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. 25 The
attestation clause, therefore, provides strong legal guaranties for the due
execution of a will and to insure the authenticity thereof. 26 As it appertains
only to the witnesses and not to the testator, it need be signed only by them.
27 Where it is left unsigned, it would result in the invalidation of the will as it
would be possible and easy to add the clause on a subsequent occasion in the
absence of the testator and the 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:
chanroble svirtualawlibrary

"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 thereto. 30 Since it is the
proverbial bone of contention, we reproduce it again for facility of reference:

jgc:chanroble s.com.ph

"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
letters on 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."
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It will be noted that Article 805 requires that the witnesses 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 that act of the
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 v. Rosal, 32 we clarified that attestation consists in witnessing the
testators 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. 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 witnessed 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.

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.

chanroblesvirtualawlibrary

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:
jgc:chanroble s.com.ph

"Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or
in the language used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the
requirements of article 805" (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 witnesses
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 following comment of former Justice J.B.L. Reyes 34
regarding Article 809, wherein 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 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. 35 In such a situation,
the defect is not only in the form or the language of the attestation 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 any statement, or an implication thereof, that
the attesting witnesses did actually bear witness to the signing by the testator
of the will and all 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.
chanrobles virtual lawlibrary

Furthermore, the rule on substantial compliance in Article 809 cannot be


invoked or relied on by respondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned
or clearly inferred that the acts not stated in the omitted textual requirements
were actually complied with in the execution of the will. In other words, the
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 only by extrinsic evidence thereof,
since an overall appreciation of the contents of the will yields no basis
whatsoever from which 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 indirection what in law he cannot
do directly.

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". . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation clause,
being the only check against perjury in the probate proceedings." (Emphasis
ours.)
3. We stress once more that under Article 809, the defects or 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

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 advanced the liberal or substantial compliance rule. This was first laid
down in the case of Abangan v. Abangan, 36 where it was held that the object
of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
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 testators
last will, must be disregarded. The subsequent cases of Avera v. Garcia, 37
Aldaba v. Roque, 38 Unson v. Abella, 39 Pecson v. Coronel, 40 Fernandez v.
Vergel de Dios, Et Al., 41 and Nayve v. Mojal, Et Al., 42 all adhered to this
position.
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, 43 In re Will of Andrada, 44 Uy Coque
v. Sioca, 45 In re Estate of Neumark, 46 and Sano v. Quintana. 47
Gumban v. Gorecho, Et Al., 48 provided the Court with the occasion to clarify
the seemingly conflicting 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:
chanrobles

virtualawlibrary chanrobles.com :chanrobles.com .ph

"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 v. Navas L. Sioca [1922], 43 Phil.
405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with
Sano v. Quintana ([1925], 48 Phil., 506). Appellee counters with the citation of
a series of cases beginning with Abangan v. Abangan ([1919], 40 Phil., 476),
continuing through Aldaba v. Roque ([1922], 43 Phil., 378), and Fernandez v.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve v. 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 v. Quintana, supra, and Nayve v. Mojal and Aguilar, supra.
"In the case of Sano v. 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 v. Sioca,
supra, was cited, but the case of Nayve v. Mojal and Aguilar, supra, was not
mentioned. In contrast, is the decision in Nayve v. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must state 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 by casuistry of the
extreme type, it would be 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 cases: 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 v. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve v. 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 view that
was earlier threshed out therein. The cases of Quinto v. Morata, 49 Rodriguez
v. Alcala, 50 Echevarria v. Sarmiento, 51 and Testate Estate of Toray 52 went
the way of the ruling as restated in Gumban. But De Gala v. Gonzales, Et Al.,
53 Rey v. Cartagena, 54 De Ticson v. De Gorostiza, 55 Sebastian v.
Panganiban, 56 Rodriguez v. Yap, 57 Grey v. Fabia, 58 Leynez v. Leynez, 59
Martir v. Martir, 60 Alcala v. De Villa, 61 Sabado v. Fernandez, 62 Mendoza v.
Pilapil, 63 and Lopez v. Liboro, 64 veered away from the strict interpretation
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:
jgc:chanrobles.com .ph

"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 v. 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 v. Yap, G.R. No.
45924, May 18, 1939; Leynez v. Leynez, G.R. No. 46097, October 18, 1939;
Martir v. Martir, G.R. No. 46995, June 21, 1940; and Alcala v. 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:
chanrob1es virtual 1aw library

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 v. Murciano, 66 "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 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."
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It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result in
the invalidation of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and
to REVIVE Special Proceeding No. 3965-R (In the Matter of the Intestate Estate

of Mateo Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.
[G.R. No. L-32213. November 26, 1973.]
AGAPITA N. CRUZ, Petitioner, v. HON. JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of First Instance of Cebu, and
MANUEL B. LUGAY, Respondents.
DECISION
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First Instance of
Cebu allowing the probate of the last will and testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
deceased, opposed the allowance of the will (Exhibit "E"), alleging that the will
was executed through fraud, deceit, misrepresentation and undue influence;
that the said instrument was executed without the testator having been fully
informed of the contents 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. Jamaoas,
Jr., Dr. Francisco Paares, 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:
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"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 testators signature under oath rather
than as attesting the execution of the instrument."
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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;
Websters 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 arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the
validity of the will as it directly involves himself and the validity of his own act.
It would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission
p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in
addition, act as a witness to the execution of the document he has notarized.
(Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43
Ill. 130) There are others holding that his signing merely as a notary in a will
nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E.
2d. 346; In Re Douglas Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson v. Utterback, 122 So. 496; In Re Baybees Estate 160 N. W. 900;
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 in the aforecited cases merely acted as instrumental, subscribing or
attesting witnesses, and not as acknowledging witnesses. Here the notary
public acted not only as attesting witness but also as acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code which reads:
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"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 of 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 805 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 that purpose. In the circumstances, the law would not be duly
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.
[G.R. NO. 157451 December 16, 2005]
LETICIA VALMONTE ORTEGA, Petitioner, v. JOSEFINA C.
VALMONTE, Respondent.
DECISION
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden
of showing why it should not be allowed. In the present case, petitioner has
failed to discharge this burden satisfactorily. For this reason, the Court cannot
attribute any reversible error on the part of the appellate tribunal that allowed
the probate of the will.
The Case
Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision 2 and the
March 7, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR CV No.
44296. The assailed Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving
and allowing probate to the said last will and testament of Placido Valmonte
and ordering the issuance of letters testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the court a quo for further and
concomitant proceedings."4
The assailed Resolution denied petitioner's Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time
in the United States until he finally reached retirement. In 1980, Placido finally
came home to stay in the Philippines, and he lived in the house and lot located
at #9200 Catmon St., San Antonio Village, Makati, which he owned in common
with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two
years after his arrival from the United States and at the age of 80 he wed
Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of
wedded bliss, Placido died on October 8, 1984 of a cause written down asCOR
PULMONALE.
"Placido executed a notarial last will and testament written in English and
consisting of two (2) pages, and dated June 15, 1983 but acknowledged only
on August 9, 1983. The first page contains the entire testamentary dispositions
and a part of the attestation clause, and was signed at the end or bottom of
that page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the continuation of the
attestation clause and the acknowledgment, and was signed by the witnesses
at the end of the attestation clause and again on the left hand margin. It
provides in the body that:
'LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE
LORD AMEN:
'I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte,
and a resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age
and being of sound and disposing mind and memory, do hereby declare this to
be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of
the Catholic Church in accordance with the rites and said Church and that a
suitable monument to be erected and provided my by executrix (wife) to
perpetuate my memory in the minds of my family and friends;

3. All the rest, residue and remainder of my real and personal properties,
including my savings account bank book in USA which is in the possession of
my nephew, and all others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last
will and testament, and it is my will that said executrix be exempt from filing a
bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June
1983 in Quezon City, Philippines.'
"The allowance to probate of this will was opposed by Leticia on the grounds
that:
1. Petitioner failed to allege all assets of the testator, especially those found in
the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities
and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged
execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part
of the petitioner and/or her agents and/or assistants; and/or

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE,


one half (1/2) portion of the follow-described properties, which belongs to me
as [co-owner]:

7. Signature of testator was procured by fraud, or trick, and he did not intend
that the instrument should be his will at the time of affixing his signature
thereto;'

A. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in


Makati, Metro Manila, described and covered by TCT No. 123468 of the
Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with
my deceased sister (Ciriaca Valmonte), having share and share alike;

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

b. 2-storey building standing on the above-described property, made of strong


and mixed materials used as my residence and my wife and located at No.
9200 Catmon Street, Makati, Metro Manila also covered by Tax Declaration No.
A-025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share alike or equal coowners thereof;

"At the hearing, the petitioner Josefina testified and called as witnesses the
notary public Atty. Floro Sarmiento who prepared and notarized the will, and
the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and
Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary
Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her
parents house at Salingcob, Bacnotan, La Union but they came to Manila every

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

and of each other. And that during the execution, the testator's wife, Josefina
was not with them.

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

1. Non-compliance with the legal solemnities and formalities in the execution


and attestation of the will; and

"The attesting witnesses to the will corroborated the testimony of the notary
public, and testified that the testator went alone to the house of spouses
Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to
accompany him to the house of Atty. Floro Sarmiento purposely for his
intended will; that after giving his instructions to Atty. Floro Sarmiento, they
were told to return on June 15, 1983; that they returned on June 15, 1983 for
the execution of the will but were asked to come back instead on August 9,
1983 because of the absence of the notary public; that the testator executed
the will in question in their presence while he was of sound and disposing mind
and that he was strong and in good health; that the contents of the will was
explained by the notary public in the Ilocano and Tagalog dialect and that all of
them as witnesses attested and signed the will in the presence of the testator

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

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2. Mental incapacity of the testator at the time of the execution of the will as
he was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly disallowed
probate."5
Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido
Valmonte to probate. The CA upheld the credibility of the notary public and the
subscribing witnesses who had acknowledged the due execution of the will.
Moreover, it held that the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism and unhygienic,
crude and impolite ways"6 did not make him a person of unsound mind.
Hence, this Petition.7
Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to great respect.
"II.

Whether or not the signature of Placido Valmonte in the subject will was
procured by fraud or trickery, and that Placido Valmonte never intended that
the instrument should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will."8
In short, petitioner assails the CA's allowance of the probate of the will of
Placido Valmonte.
This Court's Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition
for Review under Section 1 of Rule 45 of the Rules of Court. As an exception,
however, the evidence presented during the trial may be examined and the
factual matters resolved by this Court when, as in the instant case, the findings
of fact of the appellate court differ from those of the trial court. 9
The fact that public policy favors the probate of a will does not necessarily
mean that every will presented for probate should be allowed. The law lays
down the procedures and requisites that must be satisfied for the probate of a
will.10 Verily, Article 839 of the Civil Code states the instances when a will may
be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will,
at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto."
In the present case, petitioner assails the validity of Placido Valmonte's will by
imputing fraud in its execution and challenging the testator's state of mind at
the time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding it are
indicative of the existence of fraud. Particularly, she alleges that respondent,
who is the testator's wife and sole beneficiary, conspired with the notary public
and the three attesting witnesses in deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the execution and the attestation of
the will.
Petitioner contends that it was "highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American
pensionado,"11 thus casting doubt on the intention of respondent in seeking the
probate of the will. Moreover, it supposedly "defies human reason, logic and
common experience"12for an old man with a severe psychological condition to
have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or
pretense, by which the subject of it is cheated. It may be of such character
that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in
consequence of the deception regarding which the testator is led to make a
certain will which, but for the fraud, he would not have made." 13
We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. 14 The burden to show otherwise
shifts to the proponent of the will only upon a showing of credible evidence of
fraud.15 Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the
due execution of a will.16 That the testator was tricked into signing it was not
sufficiently established by the fact that he had instituted his wife, who was
more than fifty years his junior, as the sole beneficiary; and disregarded
petitioner and her family, who were the ones who had taken "the cudgels of
taking care of [the testator] in his twilight years." 17
Moreover, as correctly ruled by the appellate court, the conflict between the
dates appearing on the will does not invalidate the document, "because the law

does not even require that a [notarial] will x x x be executed and


acknowledged on the same occasion."18 More important, the will must be
subscribed by the testator, as well as by three or more credible witnesses who
must also attest to it in the presence of the testator and of one
another.19 Furthermore, the testator and the witnesses must acknowledge the
will before a notary public.20 In any event, we agree with the CA that "the
variance in the dates of the will as to its supposed execution and attestation
was satisfactorily and persuasively explained by the notary public and the
instrumental witnesses."21
The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 - - as quoted by
the CA - - are reproduced respectively as follows:

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

A We went to Atty. Sarmiento together with Placido Valmonte and the two
witnesses; that was first week of June and Atty. Sarmiento told us to return on
the 15th of June but when we returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go
back?
chanroble svirtualawlibrary

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


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

"Atty. Floro Sarmiento:

chanroblesvirtualawlibrary

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

A Yes sir.

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp.
7-8)
Felisa Gomez on cross-examination:

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

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

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


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

A Yes sir.

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

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

Josie Collado:

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

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

chanroble svirtualawlibrary

chanroble svirtualawlibrary

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

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

A Because I do not like anymore to make some alterations so I put it in my


own handwriting August 9, 1983 on the acknowledgement. (tsn, June 11,
1985, pp. 8-10)

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

Eugenio Gomez:

Q For what purpose?

A Yes, Sir.

chanroble svirtualawlibrary

chanroblesvirtualawlibrary

A Our purpose is just to sign the will.


Q Were you able to sign the will you mentioned?

chanroblesvirtualawlibrary

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


Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in
the commission of a fraud. There was no showing that the witnesses of the
proponent stood to receive any benefit from the allowance of the will. The
testimonies of the three subscribing witnesses and the notary are credible
evidence of its due execution.23 Their testimony favoring it and the finding that
it was executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives.24
Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives
the following guidelines:
"Article 798. In order to make a will it is essential that the testator be of sound
mind at the time of its execution.
"Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to
know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the will;
but if the testator, one month, or less, before making his will was publicly
known to be insane, the person who maintains the validity of the will must
prove that the testator made it during a lucid interval."
According to Article 799, the three things that the testator must have the
ability to know to be considered of sound mind are as follows: (1) the nature of
the estate to be disposed of, (2) the proper objects of the testator's bounty,
and (3) the character of the testamentary act. Applying this test to the present
case, we find that the appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them
and even their locations. As regards the proper objects of his bounty, it was
sufficient that he identified his wife as sole beneficiary. As we have stated
earlier, the omission of some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution, intent in its
disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA,25 which held thus:
"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees of
mental aberration generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been
held that mere weakness of mind, or partial imbecility from disease of body, or
from age, will not render a person incapable of making a will; a weak or
feebleminded person may make a valid will, provided he has understanding
and memory sufficient to enable him to know what he is about to do and how
or to whom he is disposing of his property. To constitute a sound and disposing
mind, it is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that testamentary
incapacity does not necessarily require that a person shall actually be insane or
of unsound mind."26
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution
of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
[G.R. No. 74695. September 14, 1993.]
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, Petitioner, v. 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.
SYLLABUS
1. CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL CODE; SCOPE OF THE
TERM "BLINDNESS." The following pronouncement in Garcia v. Vasquez
provides an insight into the scope of the term "blindness" as used in Art. 808,
to wit: "The rationale behind the requirement of reading the will to the testator
if he is blind or incapable of reading the will himself (as when he is illiterate), is
to make the provisions thereof known to him, so that he may be able to object
if they are not in accordance with his wishes . . ." Clear from the foregoing is
that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are "incapable of reading the(ir) will(s)." Since Brigido

Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or "blurred"
vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term "blind" as it is used in Art. 808.
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 conformably with his
instructions.

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.

2. ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE. 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.

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.

3. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH, ACCEPTABLE;


REASON. 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. 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 testators will.

Meanwhile, Brigidos 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 testators 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.

4. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, private respondent
read the testators 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 testators
residence precisely for the purpose of securing his conformity to the draft.

A petition for the probate of the notarial will and codicil was filed upon the
testators death on 3 January 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. 5
Petitioner, in turn, filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to make a will at
the time of its execution due to senility and old age; that the will was executed
under duress, or influence of fear or threats; that it was procured by undue
and improper pressure and influence on the part of the beneficiary who stands
to get the lions share of the testators estate; and lastly, that the signature of
the testator was procured by fraud or trick.

DECISION
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 2 of the Regional Trial Court of
Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with
codicil 4 of the late Brigido Alvarado.

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 were executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with,
probate of the deceaseds 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 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 . . ."

The issues now before us can be stated thus: Was Brigido Alvarado blind for
purposes 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?

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
conformably 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.

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:
jgc:chanrobles.com .ph

"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."
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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), 6 the
contents of which were interpreted in laymans terms by Dr. Ruperto Roasa,
whose expertise was admitted by private Respondent. 7 Dr. Roasa explained
that although the testator could visualize fingers at three (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." 9 Since the
testator was still capable of reading at that time, the court a quo concluded
that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondents 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," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia v. Vasquez 13 provides an insight into
the scope of the term "blindness" as used in Art. 808, to wit:
jgc:chanroble s.com.ph

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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 is a strict 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 latters will and codicil should have been disallowed.
We sustain private respondents 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 testators 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
testators 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 testators physician) asked the testator
whether the contents of the documents were of his own free will. Brigido
answered in the affirmative. 16 With four persons following the reading word
for word with their own copies, it 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 testators will. 17
As a final word to convince petitioner of the propriety of the trial courts
Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan, 18 to wit:
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"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 testators 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 for 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.
[G.R. No. 38338. January 28, 1985.]
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS
AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, Petitioners, v. ANDRES R. DE JESUS, JR., Respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS;
DEPARTURE FROM STRICT STATUTORY REQUIREMENTS; LIBERAL TREND
FAVORED. This will not be the first time that this Court departs from a strict
and literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the Civil Code in
the manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy.
2. ID.; ID.; ID.; PREVAILING POLICY. Thus, the prevailing policy is to require
satisfaction of the legal requirements in order to guard against fraud and bad
faith but without undue or unnecessary curtailment of testamentary privilege
(Ino v. Ino, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Will should be admitted to
probate (Rey v. Cartagena, 56 Phil. 282). If the testator, in executing his Will,
attempts to comply with all the requisites, although compliance is not literal, it
is sufficient if the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the testator.
3. ID.; ID.; SOLEMNITIES IN THE EXECUTION OF WILLS; PURPOSE. The
purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abangan, 40 Phil. 476, where we ruled
that: "The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity . . ." In particular, a
complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on
the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is
no such contingency in this case.
4. ID.; ID.; ID.; DATE IN A HOLOGRAPHIC WILL; WILL ALLOWED TO PROBATE
UNDER THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE. We have carefully
reviewed the records of this case and found no evidence of bad faith and fraud
in its execution nor was there any substitution of Wills and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus

was entirely written, dated, and signed by the testatrix herself and in a
language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary capacity at
the time of the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is fatally defective
because the date "FEB./61" appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to
be entertained. As a general rule, the "date" in a holographic Will should
include the day, month, and year of its execution. However, when as in the
case at bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only issue is
whether or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic Will
should be allowed under the principle of substantial compliance.
DECISION
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana Roxas
de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.

positively identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61" was the date when said Will was executed
by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because (a) it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and improper
pressure, and (c) the alleged testatrix acted by mistake and or did not intend,
nor could have intended the said Will to be her last Will and testament at the
time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been duly
executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter
alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was
not dated as required by Article 810 of the Civil Code. She contends that the
law requires that the Will should contain the day, month, and year of its
execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground that the
word "dated" has generally been held to include the month, day, and year. The
dispositive portion of the order reads:
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After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon
R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator.
After Letters of Administration had been granted to the petitioner, he delivered
to the lower court a document purporting to be the holographic Will of the
deceased Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Will on July 21, 1973.
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"WHEREFORE, the document purporting to be the holographic Will of Bibiana


Roxas de Jesus, is hereby disallowed for not having been executed as required
by the law. The order of August 24, 1973 is hereby set aside."
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The only issue is whether or not the date "FEB./61" appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance
with the Article 810 of the Civil Code which reads:
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ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the Philippines, and need not be
witnessed."
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Petitioner Simeon R. Roxas testified that after his appointment as


administrator, he found a notebook belonging to the deceased Bibiana R. de
Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will addressed to
her children and entirely written and signed in the handwriting of the deceased
Bibiana R. de Jesus was found. The will is dated "FEB./61" and states: "This is
my will which I want to be respected altho it is not written by a lawyer. . ."
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The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his holographic
Will the "year, month, and day of its execution," the present Civil Code omitted
the phrase "Ao, mes y dia" and simply requires that the holographic Will
should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
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The testimony of Simeon R. Roxas was corroborated by the testimonies of


Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that
the letter dated "FEB./61" is the holographic Will of their deceased mother,
Bibiana R. de Jesus. Both recognized the handwriting of their mother and

Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned after

Section 1277 of the California Code and Section 1588 of the Louisiana Code
whose Supreme Courts had consistently ruled that the required date includes
the year, month, and day, and that if any of these is wanting, the holographic
Will is invalid. The respondent further contends that the petitioner cannot plead
liberal construction of Article 810 of the Civil Code because statutes prescribing
the formalities to be observed in the execution of holographic Wills are strictly
construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills.
We should not overlook the liberal trend of the Civil Code in the manner of
execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy
"The underlying and fundamental objectives permeating the provisions of the
law on 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." (Report of the Code Commission, p. 103)
In Justice Capistranos concurring opinion in Heirs of Raymundo Castro v.
Bustos (27 SCRA 327) he emphasized that:
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". . . The law has a tender regard for the will of the testator expressed in his
last will and testament on the ground that any disposition made by the testator
is better than that which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon the presumed will of
the decedent."
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Thus, the prevailing policy is to require satisfaction of the legal requirements in


order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege (Ino v. Ino, 11 SCRA 422). If a Will has
been executed in substantial compliance with the formalities of the law, and
the possibility of bad faith and fraud in the exercise thereof is obviated, said
Will should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). Thus,
x

". . . More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the will, and the instrument

appears to have been executed substantially in accordance with the


requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect . . ." (Leynez v. Leynez, 68 Phil. 745)
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the form
followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abangan, 40 Phil. 476, where we ruled
that:
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"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 . . ."
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In particular, a complete date is required to provide against such contingencies


as that of two competing Wills executed on the same day, or of a testator
becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1
Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of
bad faith and fraud in its execution nor was there any substitution of Wills and
Testaments. There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix
herself and in a language known to her. There is also no question as to its
genuineness and due execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic Will
is fatally defective because the date "FEB./61" appearing on the holographic
Will is not sufficient compliance with Article 810 of the Civil Code. This
objection is too technical to be entertained.
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As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there is
no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be allowed
under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.

[G.R. No. L-40207. September 28, 1984.]


ROSA K. KALAW, Petitioner, v. HON. JUDGE BENJAMIN RELOVA,
Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and
GREGORIO K. KALAW, Respondents.
SYLLABUS
CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; EFFECT OF ALTERATIONS
THEREIN NOT AUTHENTICATED BY FULL SIGNATURE OF TESTATRIX; CASE AT
BAR. Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most only
as respects the particular words erased, corrected or interlined. (Velasco v.
Lopez, 1 Phil. 720, 725 [1903], citing a Decision of the Supreme Court of Spain
of April 4, 1895) Manresa gave an identical commentary when he said "la
omission de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." (Comentarios
al Codigo Civil Espaol, Quinta edicion, Tomo 5, Lib. III Tit. III Cap. I
Art. 688, pag. 483) However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was altered by substituting
the original heir with another, but which alteration did not carry the requisite of
full authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing remains
in the Will after that which could remain valid. To state that the Will as first
written should be given efficacy is to disregard the seeming change of mind of
the testatrix. But that change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by affixing her full
signature. The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic Will, which
affect only the efficacy of the altered words themselves but not the essence
and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be
determined with certitude.
DECISION

1. It is my will that I be buried in the cemetery of the catholic church of Lipa


City. In accordance with the rites of said Church, and that my executrix
hereinafter named provide and erect at the expense of my state a suitable
monument to perpetuate my memory.
2. I give, device and bequeath all my property real and personal to my beloved
brother Gregorio K. Kalaw to have and to hold the same as his property
absolutely and unconditionally.
3. I hereby appoint my said brother Gregorio K. Kalaw as sole executive of this
my last will and testament, and it is my will that said executrix be exempted
from filing a bond.
In witness where of I have hereunto set my hand this 24th day of Dec., 1968.
Natividad K. Kalaw
Testatrix
Witnesses:

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Lydia S. Recio
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of
the Civil Code reading:
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"Art. 814. In case of any insertion, cancellation, erasure or alteration in a


holographic will, the testator must authenticate the same by his full
signature."
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MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to
be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:

City, being of sound and disposing mind and memory, do hereby declare thus
to be my last will and testament.

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My Last will and Testament


In the name of God, Amen.
I, Natividad K. Kalaw, Filipino, 63 years of age, single, and a resident of Lipa

ROSAs position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3,
1973, reading in part:
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"The document Exhibit C was submitted to the National Bureau of


Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one and
the same person. Consequently, Exhibit C was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the will, Exhibit C,
should be admitted to probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that
the oppositors are estopped to assert the provision of Art. 814 on the ground

that they themselves agreed thru their counsel to submit the Document to the
NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was
it impliedly understood, that the oppositors would be in estoppel.
"The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit C. Finding the insertions, alterations and/or additions in
Exhibit C not to be authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit C.
"WHEREFORE, the petition to probate Exhibit C as the holographic will of
Natividad K. Kalaw is hereby denied."
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"SO ORDERED."

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From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were made by the testatrix, the denial to probate
of her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that "Article 814 of the Civil Code being clear and explicit, (it)
requires no necessity for interpretation."
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From that order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition for
Review on Certiorari on the sole legal question of whether or not the original
unaltered text after subsequent alterations and insertions were voided by the
Trial Court for lack of authentication by the full signature of the testatrix,
should be probated or not, with her as sole heir.
cralawnad

Ordinarily, when a number of erasures, corrections, and interlineations made


by the testator in a holographic Will have not been noted under his signature, .
. . the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined. 1 Manresa gave an
identical commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4
de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature.
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the
efficacy of the altered words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude. As
Manresa had stated in his commentary on Article 688 of the Spanish Civil

Code, whence Article 814 of the new Civil Code was derived:

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". . . No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones, no salvadas por el testador bajo su
firma, segun previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que
determina las condiciones necesarias para la validez del testamento olografo,
ya porque, de admitir lo contrario, se llegaria al absurdo de que pequeas
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva
del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armoniay congruencia con el art.
26 de la ley del Notariado, que declara nulas las adiciones, apostillas,
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre
que no se salven en la forma prevenida, pero no el documento que las
contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de
purez escrituraria, sin trascendencia alguna(l).
"Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar,
sean de palabras que no afecten, alteren ni varien de modo substancial la
expresa voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento
olografo por no estar salvada por el testador la enmienda del guarismo ultimo
del ao en que fue extendido" 3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent
Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.