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there was a preponderance of evidence sustaining the conclusion that Tomasa was of sound mind and
memory and in the possession of her faculties at the time she signed this will. In view of the conflict in
the testimony of the witnesses and the finding of the lower court, it is not justifiable to reverse the
latters conclusions.
3. The real issue as seen by the court regarding this is whether or not the second will was sufficiently
signed. YES it was. One who makes a will may sign the same by using a mark, the name having been
written by others. If writing a mark simply upon a will is sufficient indication of the intention of the
person to make and execute a will, then certainly the writing of a portion or all of her name ought to be
accepted as a clear indication of her intention to execute the will. The man who cannot write and who is
obliged to make his mark simply therefor, upon the will, is held to sign as effectually as if he had
written his initials or his full name. It would seem to be sufficient, under the law requiring a signature by
the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In
the present case, the proof shows that Tomasa Elizaga Yap Caong, if she did not sign her full name, did
at least sign her given name Tomasa, and that is sufficient to satisfy the statute.
4. Yes. An effort was made to show that the will was signed by the witnesses in one room and by
Tomasa in another. A plan of the room or rooms in which the will was signed was presented as proof
and it was shown that there was but one room; that one part of the room was one or two steps below
the floor of the other; that the table on which the witnesses signed the will was located upon the lower
floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for her
to see the table on which the witnesses signed the will. While the rule is absolute that one who makes a
will must sign the same in the presence of the witnesses and that the witnesses must sign in the
presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the
actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it
is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon
the will.
Judgment of the lower court admitting said will to probate is hereby affirmed with costs
3. Nayve vs Mojal
December 29, 1925 G.R. No. L-21755
Romualdez, J.:
FACTS:
This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his surviving
spouse, Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece,
respectively, of the deceased.
The will in question is composed of four sheets with written matter on only side of each, that is, four
pages written on four sheets. The four sides or pages containing written matter are paged Pag. 1,
Pag. 2, Pag. 3, Pag. 4, successively. Each of the first two sides or pages, which was issued, was
signed by the testator and the three witnesses on the margin, left side of the reader. On the third page
actually used, the signatures of the three witnesses appear also on the margin, left side of the reader,
but the signature of the testator is not on the margin, but about the middle of the page, at the end of
the will and before the attestation clause. On the fourth page, the signatures of the witnesses do not
appear on the margin, but at the bottom of the attestation clause, it being the signature of the testator
that is on the margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the witnesses on each and every sheet on
the left margin; (b) the fact of the sheets of the document not being paged with letters; (c) the
fact that the attestation clause does not state the number of sheets or pages actually used of
the will; and (d) the fact that the testator does not appear to have signed all the sheets in the
presence of the three witnesses, and the latter to have attested and signed all the sheets in the
presence of the testator and of each other.
Trial court admitted the will to probate and from the judgment, the opponents appealed.
ISSUE:
Whether or not the will can be admitted to probate.
HELD:
The Court ruled in the affirmative.
First defect: As each and every page used of the will bears the signatures of the testator and the
witnesses, the fact that said signatures do not all appear on the left margin of each page does not
detract from the validity of the will.
Second defect: The court held in Unson vs. Abella that paging with Arabic numerals and not with letters,
as in the case before us, is within the spirit of the law and is just as valid as paging with letters.
Third defect: The attestation clause must state the number of sheets or pages composing the will; but
when, as in the case before us, such fact, while it is not stated in the attestation clause, appears at the
end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the will, then
there can be no doubt that it complies with the intention of the law that the number of sheets of which
the will is composed be shown by the document itself, to prevent the number of the sheets of the will
from being unduly increased or decreased.
Fourth defect: It must be noted that in the attestation clause above set out it is said that the testator
signed the will in the presence of each of the witnesses and the latter signed in the presence of each
other and of the testator. So that, as to whether the testator and the attesting witnesses saw each
other sign the will, such a requirement was clearly and sufficiently complied with. What is not stated in
this clause is whether the testator and the witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the will is one which cannot
be proven by the mere exhibition of the will unless it is stated in the document. And this fact is expressly
stated in the attestation clause now before us. But the fact of the testator and the witnesses having
signed all the sheets of the will may be proven by the mere examination of the document, although it
does not say anything about this, and if that is the fact, as it is in the instant case, the danger of fraud in
this respect, which is what the law tries to avoid, does not exist.
The fact that the testator and the witnesses signed each and every page of the will is proven by the
mere examination of the signatures in the will, the omission to expressly state such evident fact does
not invalidate the will nor prevent its probate.
CARPIO, J.:
known to the testator and that the will is not acknowledged before a notary public. Caponong-Noble
also alleges that the attestation clause fails to state the number of pages on which the will is written.
CA: Court of Appeals affirmed the Resolution of the RTC-Kabankalan.
ISSUES:
1.What laws apply to the probate of the last will of Abada?
2.Whether the will of Abada has an attestation clause, and if so, whether the attestation clause complies
with the requirements of the applicable laws?
HELD:
1.The Old Civil Code : Civil Code of 1889. Abada executed his will on 4 June 1932. The laws in force at
that time are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure.
2.YES. The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will
of Abada.The matter in dispute in the present case is the attestation clause in the will of Abada. Section
618 of the Code of Civil Procedure, as amended by Act No. 2645, governs the form of the attestation
clause of Abadas will. The Code of Civil Procedure repealed Article 685 of the Old Civil Code. Under the
Code of Civil Procedure, the intervention of a notary is not necessary in the execution of any
will.Therefore, Abadas will does not require acknowledgment before a notary public.
There is no statutory requirement to state in the will itself that the testator knew the language or dialect
used in the will. This is a matter that a party may establish by proof aliunde. Alipio Abaja testified that
Abada used to gather Spanish-speaking people in their place. This sufficiently proves that Abada speaks
the Spanish language.
Abadas will shows that it has an attestation clause. The phrase (in english) "in the left margin of each
and every one of the two pages consisting of the same" shows that the will consists of two pages. The
pages are numbered correlatively with the letters "ONE" and "TWO". The phrase "Subscribed and
professed by the testator Alipio Abada as his last will and testament in our presence, the testator having
also signed it in our presence on the left margin of each and every one of the pages of the same." The
attestation clause clearly states that Abada signed the will and its every page in the presence of the
witnesses.
The Court agrees with the appellate court in applying the rule on substantial compliance in determining
the number of witnesses. While the attestation clause does not state the number of witnesses, a close
inspection of the will shows that three witnesses signed it.The last part of the attestation clause states
(in English) "in its witness, every one of us also signed in our presence and of the testator." This clearly
shows that the attesting witnesses witnessed the signing of the will of the testator, and that each
witness signed the will in the presence of one another and of the testator.
9. SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND,
respondents.
G.R. No. 106720
nd
This is an appeal by certiorari from the Decision of the Court of Appeals which reversed and set aside the
decision of the lower court and dismissed the petition for probate.
The instrument submitted for probate was a holographic will made by the late Annie Sand, who died on
November 25, 1982. She named as devisees petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose
Ajero, Sr., and their children. Petitioners instituted a special proceeding on January 20, 1983, for
allowance of Annies will, wherein they alleged that she was of sound mill at thye time that she executed
the will and that the same was her free and voluntary act. Private respondent opposed the petition on
the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting;
it contained alterations and corrections which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in
Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
No evidence was presented to show that the will in question is different from the will actually executed
by the testatrix. The oppositors only questioned the handwriting in which the will was executed, but did
not present any other will which may have been executed by Annie. Three witnesses also attested to the
fact that the handwriting was that of Annies.
As regards the question of capacity, Clemente Sand testified that the decedent was of sound mind when
he visited her on her birthday in 1981, which was roughly the same time when she executed the will.
The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She
even identified the lot number and square meters of the lots she had conveyed by will. The objects of
her bounty were likewise identified explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there is more than sufficient showing
that she knows the character of the testamentary act.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate
and allowed it, stating that it found no reason for the wills disallowance on the grounds of the
decedents lack of capacity or the wills failure to comply with the requisite formalities.
The CA reversed the decision on the ground that the will failed to meet the necessary requisites for
validity as stated in Arts. 813 and 814 of the CC:
Art. 813:
When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date, such date validates the dispositions preceding
it, whatever be the time of prior dispositions.
Art. 814:
In case of insertion, cancellation, erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not
dated. It also found that the erasures, alterations and cancellations made thereon had not been
authenticated by decedent.
Hence, this appeal.
Held:
The enumerations found in Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed
in any of the following cases:
(a)
(b)
If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c)
(d)
If it was procured by undue and improper pressure and influence, on the part of the beneficiary,
or of some other person for his benefit;
(e)
If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839:
(1)
(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)
(6)
If the testator acted by mistake or did not intend that the instrument he signed should be his
will at the time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a
holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedent's last will and testament; (2) whether said will was executed in accordance with
the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at
the time the will was executed; and, (4) whether the execution of the will and its signing were the
voluntary acts of the decedent.
In the case of holographic wills, what assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code,
thus:
A person may execute a holographic will which must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and
need not be witnessed.
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814.
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the
holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.
Petition granted.
8. FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON, oppositor-appellee (109 PHIL 102)
EN BANC; G.R. No. L-14003
August 5, 1960
the will), and provides for resort to expert evidence to supply the deficiency (811, paragraph 2).The
requirement can be considered mandatory only in the case of ordinary testaments, precisely because
the presence of at least three witnesses at the execution of ordinary wills is made by law essential to
their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it
necessary", which reveal that what the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true intention of
the testator be carried into effect.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory
and is not mandatory.
Decision appealed from set aside, and the case is remanded to the trial court for admission of further
evidence, in the interest of fairness as this is the first time the provision has had to be construed by the
Court.