The attestation clause shall..
I hereby manifest that every sheet of the aforesaid testament, on the left-
G.R. No. L-3497 May 18, 1951
THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF
JOSE VENZON. VALENTINA CUEVAS, petitioner-appellee,
vs.
PILAR ACHACOSO, oppositor-appellant.
Jose Venzon died, leaving a will. In said will the deceased instituted as his heirs,
Valentina Cuevas, his widow and Rosario Asera Venzon, his daughter. He named his
widow as executrix of the will. Valentina Cuevas filed a petition for the probate of said
will.
Pilar Achacoso filed an alternative petition for the probate of a previous will executed
by the deceased praying that, if the will submitted by the widow be rejected, the other
will be admitted to probate. In the previous will, among the heirs instituted is Pilar
Achacoso. Pilar Achacoso objected to the probate of the second will executed by the
deceased.
The main error assigned refers to the alleged lack of attestation clause in the will
under consideration, or to the fact that, if there is such attestation clause, the same
has not been signed by the instrumental witnesses, but by the testator himself, and it
is claimed that this defect has the effect of invalidating the will.
The will in question, after reciting in separate paragraphs, and under correlative
numbers, the provisions of the will, winds up with the following clause:
IN WITNESS WHEREOF, I sign this testament or last will in the municipality
of Iba, Zambales, Philippines, this 10th day of October, 1945, in the
presence of the three witnesses, namely Dr. Nestorio Trinidad, Don
Baldomero Achacoso, and Mr. Proceso Cabal as instrumental witnesses to
my signing; this testament is written in three (3) sheets marked by letter "A",
"B" and "C" consecutively on top of each sheet and upon my request and in
my presence and also in the presence of each of the aforesaid instrumental
witnesses, they also signed this testament already reffered to.
84 | S U C C E S S I O N
hand margin as well as the testament itself have been signed by me as also
each of the witnesses has also signed in my presence and in the presence
of each other.
(Sgd.) JOSE VENZON
Witnesses:
(Sgd.) NESTORIO TRINIDAD
(Sgd.) BALDOMERO L. ACHACOSO
(Sgd.) PROCESO CABAL.
The clause is the attestation clause reffered to in the law which substantially complies
with the requirements of the law. The only apparent anomaly we find is that it appears
to be an attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, as to affect the validity of the will, it appearing that
right under the signature of the testator, there appear the signatures of the three
instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario Razonado de
Legislacion y Jurisprudencia, Vol. 4, p. 1115, is one who takes part in the execution of
an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807, 809). An instrumental
witness, therefore, does not merely attest to the signature of the testator but also to
the proper execution of the will. The fact that the three instrumental witnesses have
signed the will immediately under the signature of the testator, shows that they have
in fact attested not only to the genuineness of his signature but also to the due
execution of the will as embodied in the attestation clause.
The attestation clause in question bears close similarity with the attestation clause in
the will involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation
claused formed part of the body of the will and its recital was made by the testratrix
himself and was signed by her and by the three instrumental witnesses. In upholding
the validity of the will, the court said:
In reality it appears that it is the testratrix who makes the declaration about
the points in the last paragraph of the will; however as the witnesses
together with the testratrix, have signed the said declaration, we are of the
opinion and so hold that the words above quoted of the testament constitute
a sufficient compliance with the requirements of Act No. 2645.
As was said in one case, So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's will, must be
disregarded." (In re will of Tan Diuco, supra, p. 811.) (Emphasis supplied.)
Expressive of this liberal view of interpretation, are also the following rules embodied
in the new Civil Code. These provisions, although not directly applicable, are
however, significant because they project the point of view of our legislature when it
adopted them having in view the existing law and jurisprudence on the matter.
. 788. If a testamentary disposition admits of different interpretations, in case
of doubt, that interpretation by which the disposition is to be operative shall
be preferred.
Art. 791. The words of a will are to receive an interpretation which will give to
every expressions inoperative; and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy.
G.R. No. 42258 September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-
appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution:
That of January 29, 1935, praying for the reconsideration of the decision of the court
and that of the same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied
upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname
on the spaces of the will where she should place her thumbmarks;
85 | S U C C E S S I O N
3. That the will in question was not signed by the testatrix on the date indicated
therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a
physical or mental condition to make it.
We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced
age of 92 years, was in good health until September 1, 1933. She had a slight cold on
said date for which reason she was visited by her physician, Dr. Florencio Manuel.
Said physician again visited her three or four days later and found her still suffering
from said illness but there was no indication that she had but a few days to live. She
ate comparatively well and conserved her mind and memory at least long after noon
of September 7, 1933. She took her last nourishment of milk in the morning of the
following day, September 8, 1933, and death did not come to her until 11 o'clock
sharp that morning.
(The will of the testatrix Leoncia Tolentino was prepared by Atty. Macariano Almario.
The will was written by Atty. Almario in his own handwriting and was written in
Spanish as instructed by the testatrix. After the testatrix placed her thumbmark,
Almario signed the three pages of the will in the presence of the testatrix and the
witnesses and that the latter signed in presence of each other.)
The will in question was prepared by Attorney Marciano Almario between 11 and 12
o'clock noon on September 7, 1933, in the house of the testatrix Leoncia Tolentino,
after she had expressed to said attorney her desire to make a will and bequeath her
property to the petitioner Victorio Payad in compensation according to her, for his
diligent and faithful services rendered to her. Victorio Payad had grown up under the
care of the testatrix who had been in her home from childhood. The will was written
by Attorney Almario in his own handwriting, and was written in Spanish because he
had been instructed to do so by the testatrix. It was later read to her in the presence
of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were
then present. The testatrix approved all the contents of the document and requested
Attorney Almario to write her name where she had to sign by means of her
thumbmark in view of the fact that her fingers no longer had the necessary strength to
hold a pen. She did after having taken the pen and tried to sign without anybody's
help. Attorney Almario proceeded to write the name of the testatrix on the three pages
composing the will and the testatrix placed her thumbmark on said writing with the
help of said attorney, said help consisting in guiding her thumb in order to place the
mark between her name and surname, after she herself had moistened the tip of her
thumb with which she made such mark, on the ink pad which was brought to her for
said purpose. Said attorney later signed the three pages of the will in the presence of
the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona,
who, in turn, forthwith signed it successively and exactly under the same
circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will and
that she never made said will because she was no longer physically or mentally in a
condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria
Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney
Almario in the morning of September 7, 1933, in the house of the deceased where
they were then living, and that the first time that they saw him there was at about 12
o'clock noon on September 8th of said year, when Leoncia Tolentino was already
dead, Gliceria Quisonia stating that on that occasion Almario arrived there
accompanied only by woman named Pacing. They did not state that Almario was
accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the
instrumental witnesses of the will. Said two witnesses, however, could not but admit
that their room was situated at the other end of the rooms occupied by the deceased
herself and by the petitioner Victorio Payad, and that their said room and that of
Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw
the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez
stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said
month. Gliceria Quisonia further stated that in the morning of September 7th, she
prepared the noonday meal in the kitchen which was situated under the house. Under
such circumstances it is not strange that the two did not see the testatrix when,
according to the evidence for the petitioner, she made her will and signed it by means
of her thumbmark. In order to be able to see her and also Almario and the
instrumental witnesses of the will, on that occasion, it was necessary for them to enter
the room where the deceased was, or at least the adjoining room where the will was
prepared by Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was
already so weak that she could not move and that she could hardly be understood
because she could no longer enunciate, making it understood thereby, that in such
condition it was absolutely impossible for her to make any will. The attorney for the
oppositor insists likewise and more so because, according to him and his witness Paz
de Leon, two days before the death of the testatrix, or on September 6, 1933, she
could not even open her eyes or make herself understood.
86 | S U C C E S S I O N
The testimony of said witnesses is not sufficient to overthrow, or discredit the
testimony of the petitioner-appellant or that of Attorney Almario and the three
instrumental witnesses of the will because, to corroborate them, we have of record
the testimony of the physician of the deceased and the accountant Ventura Loreto
who are two disinterested witnesses, inasmuch as the outcome of these proceedings
does not affect them in the least. The two testified that two, three or four days before
the death of the testatrix, they visited her in her home, the former professionally, and
the latter as an acquaintance, and they then found her not so ill as to be unable to
move or hold a conversation. They stated that she spoke to them intelligently; that
she answered all the questions which they had put to her, and that she could still
move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's
motion for reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon
her death, the deceased left a letter signed by herself, placed in a stamped envelope
and addressed to Teodoro R. Yangco, with instructions not to open it until after her
death; (2) that there are witnesses competent to testify on the letter in question, in
addition to other evidence discovered later, which could not be presented at the trial;
(3) that in the letter left by the deceased, she transfers all her property to Teodoro R.
Yangco stating therein that, upon her death, all the property in question should
become Yangco's. From this alleged fact, the oppositor infers that the deceased
never had and could not have had the intention to make the will in question, and (4)
that said oppositor knew of the existence of said letter only after her former attorney,
Alejandro Panis, had been informed thereof in May, 1935, by one of Teodoro R.
Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed
another supplementary motion alleging that she had discovered some additional new
evidence consisting in the affidavit of Attorney Gabino Fernando Viola wherein the
latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the
will of the deceased but he did not do so because after seeing her he had been
convinced that she could not make a will because she had lost her speech and her
eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially
affirming the facts alleged by the oppositor, are attached to both motions for a new
trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and
cannot be newly discovered evidence, and are not admissible to warrant the holding
of a new trial, because the oppositor had been informed of the facts affirmed by
Attorney Jose Cortes in his affidavit long before this case was decided by this court. It
is stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the
attorney for oppositor the fact that the deceased had left a letter whereby she
transferred all her property to Teodoro R. Yangco, and the judgment was rendered
only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly
discovered evidence inasmuch as the judgment of the lower court was favorable to
her. She, however, overlooks the fact that she also appealed from the decision of the
lower court and it was her duty, under the circumstances, to inform this court of the
discovery of said allegedly newly discovered evidence and to take advantage of the
effects thereof because, by so doing, she could better support her claim that the
testatrix made no will, much less the will in question. Said evidence, is not new and is
not of the nature of that which gives rise to a new trial because, under the law, in
order that evidence may be considered newly discovered evidence and may serve as
a ground for a new trial, it is necessary (a) that it could not have been discovered in
time, even by the exercise of due diligence; (b) that it be material, and (c) that it also
be of such a character as probably to change the result if admitted (section 497, Act
No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense that,
even considering it newly discovered evidence, it will be sufficient to support the
decision of the lower court and modify that of this court. It is simply hearsay or, at
most, corroborative evidence. The letter of the deceased Leoncia Tolentino to
Teodoro R. Yangco would, in the eyes of the law, be considered important or material
evidence but this court has not the letter in question before it, and no attempt was
ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant
thereto is not more competent than that of Attorney Jose Cortes because, granting
that when he was called by Victorio Payad to help the deceased Leoncia Tolentino to
make her will and he went to her house on September 5, 1933, the deceased was
almost unconscious, was unintelligible and could not speak, it does not necessarily
mean that on the day she made her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her to dispose of all her
property. What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in
question is not and can not be newly discovered evidence of the character provided
for by law, not only because it does not exclude the possibility that testatrix had
87 | S U C C E S S I O N
somewhat improved in health, which possibility became a reality at the time she made
her will because she was then in the full enjoyment of her mental faculties, according
to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad
and Marciano Almario, but also because during the hearing of these proceedings in
the Court of First Instance, Attorney Viola was present, and the oppositor then could
have very well called him to the witness stand, inasmuch as her attorney already
knew what Attorney Viola was to testify about, yet she did not call him. The last fact is
shown by the following excerpt from pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I
should like to present as the last witness Attorney Fernando Viola who was
called by the petitioner Victoria Payad to prepare the will of the deceased in
his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando
Viola? Mr. PANIS: No, Your Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish
to call to the witness stand? Mr. PANIS: Your Honor, he is busy in the
branch, presided over by Judge Sison.
COURT: And when can he come? Mr. PANIS. I am now going to find out,
Your Honor. If the other party, Your Honor, is willing to admit what said
witness is going to testify in the sense that said Attorney Fernando Viola
went to the house of the deceased on September 5, 1933, for the purpose of
talking to the deceased to draft the will upon petition of Mr. Victorio Payad; if
the other party admits that, then I am going waive the presentation of the
witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other party
would not admit that proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness,
Mr. Viola, without prejudice to the other party's calling the witness it may
wish to call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to
the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in
her favor, it might have been because she considered his testimony unimportant and
unnecessary, and at the present stage of the proceedings, it is already too late to
claim that what said attorney may now testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court in the original decision,
and the additional reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil.,
297), the right to a new trial on the ground of newly discovered evidence is limited to
ordinary cases pending in this court on bills of exceptions, the motion for
reconsideration and a new trial filed by the oppositor are hereby denied, ordering that
the record be remanded immediately to the lower court. So ordered.
Avancea, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of
Southern Leyte, (Branch III, Maasin),respondent.
Facts:
The last will and testament of Dorotea Perez is written in Cebuano-Visayan dialect
and consists of two pages. The first page contains the testamentary disposition and
signed at bottom of the page by the testatrix and at the left margin by the three
instrumental witnesses. The second page contains the attestation clause and the
acknowledgment and signed at the end of the attestation clause by the three attesting
witnesses and on the left margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and
presented Vicente Timkang, one of the subscribing witnesses to the will, who testified
on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of
88 | S U C C E S S I O N
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 partepraying for a thirty-day period within which to
deliberate on any step to be taken as a result of the disallowance of the will. He also
asked that the ten-day period required by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of
the will. However, the motion together with the previous manifestation and/or motion
could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to
his new station at Pasig, Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal assumed the position of
presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for
the appointment of special administrator was likewise denied because of the
petitioner's failure to comply with the order requiring him to submit the names of' the
intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that
the testatrix and all the three instrumental and attesting witnesses sign at the end of
the will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written
by some other person in his presence, and by his express direction,
and attested and subscribed by three or more credible witnesses in
the presence of the testator and of one another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
 each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed
the will and the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for
a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but
an the three subscribing witnesses must also sign at the same place or at the end, in
the presence of the testatrix and of one another because the attesting witnesses to a
will attest not merely the will itself but also the signature of the testator. It is not
sufficient compliance to sign the page, where the end of the will is found, at the left
hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic
validity of the wig that the signatures of the subscribing witnesses should be
specifically located at the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature intended to place so heavy an
import on the space or particular location where the signatures are to be found as
long as this space or particular location wherein the signatures are found is consistent
with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or
signed at its end by the testator himself or by the testator's name written by another
person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another.
89 | S U C C E S S I O N
It must be noted that the law uses the terms attested and subscribed Attestation
consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for the execution of a
will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the
purpose of Identification of such paper as the will which was executed by the testator.
(Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that
the will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the
will attested not only to the genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure
from the usual forms should be ignored, especially where the authenticity of the will is
not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the
liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the
Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were
not for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the sole
page which contains all the testamentary dispositions, especially so when the will was
properly Identified by subscribing witness Vicente Timkang to be the same will
executed by the testatrix.
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".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation
clause must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation
clause shall state the number of pages or sheets upon which the
win is written, which requirement has been held to be mandatory as
an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re will
of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil.
405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will
itself. But here the situation is different. While the attestation clause
does not state the number of sheets or pages upon which the will is
written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in
our opinion takes this case out of the rigid rule of construction and
places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a
similar liberal approach:
90 | S U C C E S S I O N
... Impossibility of substitution of this page is assured not only (sic)
the fact that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified by
testatrix and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control where the purpose of the law to guarantee the Identity of the
testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) 'witnesses may
sabotage the will by muddling or bungling it or the attestation
clause.
[G.R. No. 147145. January 31, 2005]
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG
NOBLE, petitioner, vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
Facts:
Abada died sometime in May 1940.[4] His widow Paula Toray (Toray) died
sometime in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja (Alipio) filed with the then Court of First
Instance of Negros Occidental (now RTC-Kabankalan) a petition,[5] docketed as SP
No. 070 (313-8668), for the probate of the last will and testament (will) of Abada.
Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja
(Eulogio) and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong (Caponong) opposed the petition on the ground that Abada
left no will when he died in 1940. Caponong further alleged that the will, if Abada
really executed it, should be disallowed for the following reasons: (1) it was not
executed and attested as required by law; (2) it was not intended as the last will of the
testator; and (3) it was procured by undue and improper pressure and influence on
the part of the beneficiaries. Citing the same grounds invoked by Caponong, the
alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo,
Humberto, Teodora and Elena Abada (Joel Abada, et al.), and Levi, Leandro,
Antonio, Florian, Hernani and Carmela Tronco (Levi Tronco, et al.), also opposed the
petition. The oppositors are the nephews, nieces and grandchildren of Abada and
Toray.
On 13 September 1968, Alipio filed another petition [6] before the RTC-
Kabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will and
testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed
the petition on the same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition[7] before the RTC-
Kabankalan, docketed as SP No. 069 (309), praying for the issuance in his name of
letters of administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the
will of Toray. Since the oppositors did not file any motion for reconsideration, the
order allowing the probate of Torays will became final and executory.[8]
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble (Caponong-Noble) Special Administratrix of the estate of Abada and
Toray.[9]Caponong-Noble moved for the dismissal of the petition for probate of the will
of Abada. The RTC-Kabankalan denied the motion in an Order dated 20 August
1991.[10]
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S.
Layumas discovered that in an Order dated 16 March 1992, former Presiding Judge
Edgardo Catilo had already submitted the case for decision. Thus, the RTC-
Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
Issue:
4. Whether the will of Abada has an attestation clause, and if so, whether
the attestation clause complies with the requirements of the applicable
laws;
6. Whether evidence aliunde may be resorted to in the probate of the will
of Abada.
91 | S U C C E S S I O N
Ruling:
Section 618 of the Code of Civil Procedure, as amended by Act No.
2645,[15] governs the form of the attestation clause of Abadas will. [16] Section 618 of
the Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the preceding
section,[17] shall be valid to pass any estate, real or personal, nor charge or affect the
same, unless it be written in the language or dialect known by the testator and signed
by him, or by the 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 each other. The testator or the
person requested by him to write his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page thereof, on the left margin, and
said pages shall be numbered correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or pages used, upon which the
will is written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the will and all
pages thereof in the presence of the testator and of each other.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an attestation clause. The attestation
clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y cada una de las hojas del
mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este documento y en el margen izquierdo de todas y
cada una de las dos hojas de que esta compuesto el mismo, las cuales estan
paginadas correlativamente con las letras UNO y DOS en la parte superior de la
carrilla.[28]
Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase en el margen izquierdo de todas y cada
una de las dos hojas de que esta compuesto el mismo which means 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 as can be gleaned from the phrase las cuales estan paginadas
correlativamente con las letras UNO y DOS.
Caponong-Noble further alleges that the attestation clause fails to state
expressly that the testator signed the will and its every page in the presence of three
witnesses. She then faults the Court of Appeals for applying to the present case the
rule on substantial compliance found in Article 809 of the New Civil Code. [29]
The first sentence of the attestation clause reads: The English translation is:
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 attestationclause clearly states
that Abada signed the will and its every page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does
not indicate the number of witnesses. On this point, 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.
This Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. In Dichoso de Ticson v. De Gorostiza,[30] the Court
recognized that there are two divergent tendencies in the law on wills, one being
based on strict construction and the other on liberal construction. In Dichoso, the
Court noted that Abangan v. Abangan,[31] the basic case on the liberal construction, is
cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,[32] the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her
argument while the respondent, contending that the rule on strict construction should
apply, also cited a long series of cases to support his view. The Court, after
examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which
would be applicable to all cases. 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. x x x.
92 | S U C C E S S I O N
An attestation clause is made for the purpose of preserving, in permanent form, a
record of the facts attending the execution of the will, so that in case of failure of the
memory of the subscribing witnesses, or other casualty, they may still be proved.
(Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where
its attestation clause serves the purpose of the law. x x x [33]
We rule to apply the liberal construction in the probate of Abadas will. Abadas
will clearly shows four signatures: that of Abada and of three other persons. It is
reasonable to conclude that there are three witnesses to the will. The question on the
number of the witnesses is answered by an examination of the will itself and without
the need for presentation of evidencealiunde. The Court explained the extent and
limits of the rule on liberal construction, thus:
They do not allow evidence aliunde to fill a void in any part of the document or
supply missing details that should appear in the will itself. They only permit a
probe into the will, an exploration within its confines, to ascertain its meaning
or to determine the existence or absence of the requisite formalities of law.
The phrase en presencia de nosotros or in our presence coupled with the signatures
appearing on the will itself and after the attestation clause could only mean that: (1)
Abada subscribed to and professed before the three witnesses that the document
was his last will, and (2) Abada signed the will and the left margin of each page of the
will in the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and all its
pages in the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is desirable. It is
sufficient if from the language employed it can reasonably be deduced that the
attestation clause fulfills what the law expects of it. [35]
The last part of the attestation clause states en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador. In English, this means
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.
G.R. No. 192916 October 11, 2010
MANUEL A. ECHAVEZ, Petitioner,
vs.
DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE
.REGISTER OF DEEDS OF CEBU CITY, Respondents
Facts:
Vicente Echavez was the absolute owner of several lots which includes Lot No. 1956-
A and Lot No. 1959. Vicente donated the subject lots to Manuel Echavez through a
Deed of Donation Mortis Causa. Manuel accepted the donation.
Vicente executed a Contract to Sell over the same lots in favor of Dozen Construction
and Development Corporation (Dozen Corporation). They executed two Deeds of
Absolute Sale over the same properties covered by the previous Contract to Sell.
Vicente died. Emiliano Cabanig, Vicentes nephew, filed a petition for the settlement
of Vicentes intestate estate. On the other hand, Manuel filed a petition to approve
Vicentes donation mortis causa in his favor and an action to annul the contracts of
sale Vicente executed in favor of Dozen Corporation. These cases were jointly heard.
The RTC dismissed Manuels petition to approve the donation and his action for
annulment of the contracts of sale.2 The RTC found that the execution of a Contract
to Sell in favor of Dozen Corporation, after Vicente had donated the lots to Manuel,
was an equivocal act that revoked the donation. The CA held that since the donation
in favor of Manuel was a donation mortis causa, compliance with the formalities for
the validity of wills should have been observed. The CA found that the deed of
donation did not contain an attestation clause and was therefore void.
The Petition for Review on Certiorari
Manuel claims that the CA should have applied the rule on substantial compliance in
the construction of a will to Vicentes donation mortis causa. He insists that the strict
construction of a will was not warranted in the absence of any indication of bad faith,
fraud, or substitution in the execution of the Deed of Donation Mortis Causa. He
argues that the CA ignored the Acknowledgment portion of the deed of donation,
which contains the "import and purpose" of the attestation clause required in the
execution of wills. The Acknowledgment reads:
93 | S U C C E S S I O N
BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu,
personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on
April 10, 1985 at [sic] Talisay, Cebu known to me to be the same person who
executed the foregoing instrument of Deed of Donartion Mortis Causa before the
Notary Public and in the presence of the foregoing three (3) witnesses who signed
this instrument before and in the presence of each other and of the Notary Public and
all of them acknowledge to me that the same is their voluntary act and deed.
[Emphasis in the original.]
Ruling:
The CA correctly declared that a donation mortis causa must comply with the
formalities prescribed by law for the validity of wills, 4 "otherwise, the donation is void
and would produce no effect." 5 Articles 805 and 806 of the Civil Code should have
been applied.
As the CA correctly found, the purported attestation clause embodied in the
Acknowledgment portion does not contain the number of pages on which the deed
was written.lavvphilThe exception to this rule in Singson v. Florentino 6and Taboada v.
Hon. Rosal,7 cannot be applied to the present case, as the facts of this case are not
similar with those of Singson and Taboada. In those cases, the Court found that
although the attestation clause failed to state the number of pages upon which the will
was written, the number of pages was stated in one portion of the will. This is not the
factual situation in the present case.
Even granting that the Acknowledgment embodies what the attestation clause
requires, we are not prepared to hold that an attestation clause and an
acknowledgment can be merged in one statement.
That the requirements of attestation and acknowledgment are embodied in two
separate provisions of the Civil Code (Articles 805 and 806, respectively) indicates
that the law contemplates two distinct acts that serve different purposes. An
acknowledgment is made by one executing a deed, declaring before a competent
officer or court that the deed or act is his own. On the other hand, the attestation of a
will refers to the act of the instrumental witnesses themselves who certify to the
execution of the instrument before them and to the manner of its execution.81avvphi1
Although the witnesses in the present case acknowledged the execution of the Deed
of Donation Mortis Causa before the notary public, this is not the avowal the law
requires from the instrumental witnesses to the execution of a decedents will. An
attestation must state all the details the third paragraph of Article 805 requires. In the
absence of the required avowal by the witnesses themselves, no attestation clause
can be deemed embodied in the Acknowledgement of the Deed of Donation Mortis
Causa.
G.R. No. 123968 April 24, 2003
URSULINA GANUELAS, METODIO GANUELAS and ANTONIO
GANUELAS, petitioners,
vs.
HON. ROBERT T. CAWED, Judge of the Regional Trial Court of San
Fernando, La Union (Branch 29), LEOCADIA G. FLORES, FELICITACION G.
AGTARAP, CORAZON G. SIPALAY and ESTATE OF ROMANA GANUELAS
DE LA ROSA, represented by GREGORIO DELA ROSA,
Administrator, respondents.
Facts:
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed a Deed of
Donation of Real Property covering seven parcels of land in favor of her niece
Ursulina Ganuelas (Ursulina).
The pertinent provision of the deed of donation reads, quoted verbatim:
xxx xxx xxx
That, for and in consideration of the love and affection which the DONOR
has for the DONEE, and of the faithful services the latter has rendered in the
past to the former, the said DONOR does by these presents transfer and
convey, by way of DONATION, unto the DONEE the property above,
described, to become effective upon the death of the DONOR; but in the
event that the DONEE should die before the DONOR, the present donation
shall be deemed rescinded and of no further force and effect.
xxx xxx xxx.3
Celestina executed a document denominated as Revocation of Donation 4 purporting
to set aside the deed of donation. More than a month later Celestina died without
issue and any surviving ascendants and siblings.
After Celestina's death, Ursulina had been sharing the produce of the donated
properties with private respondents Leocadia G. Flores, et al., nieces of Celestina.
94 | S U C C E S S I O N
In 1982, or twenty-four years after the execution of the Deed of Donation, Ursulina
secured the corresponding tax declarations, in her name, over the donated
properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111, 18112, 18113
and 18114, and since then, she refused to give private respondents any share in the
produce of the properties despite repeated demands.
Private respondents were thus prompted to file on May 26, 1986 with the RTC of San
Fernando, La Union a complaint5 against Ursulina, along with Metodio Ganuelas and
Antonio Ganuelas who were alleged to be unwilling plaintiffs. The complaint alleged
that the Deed of Donation executed by Celestina in favor of Ursulina was void for lack
of acknowledgment by the attesting witnesses thereto before notary public Atty.
Henry Valmonte, and the donation was a disposition mortis causa which failed to
comply with the provisions of the Civil Code regarding formalities of wills and
testaments, hence, it was void. The plaintiffs-herein private respondents thus prayed
that judgment be rendered ordering Ursulina to return to them as intestate heirs the
possession and ownership of the properties. They likewise prayed for the cancellation
of the tax declarations secured in the name of Ursulina, the partition of the properties
among the intestate heirs of Celestina, and the rendering by Ursulina of an
accounting of all the fruits of the properties since 1982 and for her to return or pay the
value of their shares.
The defendants-herein petitioners alleged in their Answer6 that the donation in favor
of Ursulina was inter vivos as contemplated under Article 729 of the Civil
Code,7 hence, the deed did not have to comply with the requirements for the
execution of a valid will; the Revocation of Donation is null and void as the ground
mentioned therein is not among those provided by law to be the basis thereof; and at
any rate, the revocation could only be legally enforced upon filing of the appropriate
complaint in court within the prescriptive period provided by law, which period had, at
the time the complaint was filed, already lapsed.
The trial court, holding that the provision in the Deed of Donation that in the event that
the DONEE should predecease the DONOR, the "donation shall be deemed
rescinded and of no further force and effect" is an explicit indication that the deed is a
donation mortis causa,8 found for the plaintiffs-herein private respondents, thus, the
court declared the donation null and void.
The trial court also held that the absence of a reservation clause in the deed implied
that Celestina retained complete dominion over her properties, thus supporting the
conclusion that the donation is mortis causa,10 and that while the deed contained an
attestation clause and an acknowledgment showing the intent of the donor to effect a
postmortem disposition, the acknowledgment was defective as only the donor and
donee appear to have acknowledged the deed before the notary public, thereby
rendering the entire document void.11
Lastly, the trial court held that the subsequent execution by Celestina of the
Revocation of Donation showed that the donor intended the revocability of the
donation ad nutum, thus sustaining its finding that the conveyance wasmortis causa.12
On herein petitioners' argument that the Revocation of Donation was void as the
ground mentioned therein is not one of those allowed by law to be a basis for
revocation, the trial court held that the legal grounds for such revocation as provided
under the Civil Code arise only in cases of donations inter vivos, but not in
donationsmortis causa which are revocable at will during the lifetime of the donor.
The trial court held, in any event, that given the nullity of the disposition mortis
causa in view of a failure to comply with the formalities required therefor, the Deed of
Revocation was a superfluity.13
Hence, the instant petition for review, petitioners contending that the trial court erred:
I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION EXECUTED
BY CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;
III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER
URSULINA GANUELAS.14
Petitioners argue that the donation contained in the deed is inter vivos as the main
consideration for its execution was the donor's affection for the donee rather than the
donor's death;15 that the provision on the effectivity of the donation after the
donor's death simply meant that absolute ownership would pertain to the donee on
the donor's death;16 and that since the donation is inter vivos, it may be revoked only
for the reasons provided in Articles 760,17 76418 and 76519 of the Civil Code.
In a letter of March 16, 1998,20 private respondent Corazon Sipalay, reacting to this
Court's January 28, 1998 Resolution requiring private respondents "to SHOW CAUSE
why they should not be disciplinarily dealt with or held in contempt" for failure to
submit the name and address of their new counsel, explains that they are no longer
interested in pursuing the case and are "willing and ready to waive whatever rights"
they have over the properties subject of the donation. Petitioners, who were required
to comment on the letter, by Comment of October 28, 1998, 21 welcome private
95 | S U C C E S S I O N
respondents' gesture but pray that "for the sake of enriching jurisprudence, their
[p]etition be given due course and resolved."
Issue: Whether the donation is inter vivos or mortis causa.
Ruling:
Crucial in the resolution of the issue is the determination of whether the donor
intended to transfer the ownership over the properties upon the execution of the
deed.22
Donation inter vivos differs from donation mortis causa in that in the former, the act is
immediately operative even if the actual execution may be deferred until the death of
the donor, while in the latter, nothing is conveyed to or acquired by the donee until the
death of the donor-testator.23 The following ruling of this Court in Alejandro v.
Geraldez is illuminating:24
If the donation is made in contemplation of the donor's death, meaning that
the full or naked ownership of the donated properties will pass to the donee
only because of the donor's death, then it is at that time that the donation
takes effect, and it is a donation mortis causa which should be embodied in
a last will and testament.
But if the donation takes effect during the donor's lifetime or independently of
the donor's death, meaning that the full or naked ownership (nuda
proprietas) of the donated properties passes to the donee during the donor's
lifetime, not by reason of his death but because of the deed of donation, then
the donation is inter vivos.
If the donation is inter vivos, it must be executed and accepted with the formalities
prescribed by Articles 74825 and 74926 of the Civil Code, except when it is onerous in
which case the rules on contracts will apply. If it is mortis causa, the donation must be
in the form of a will, with all the formalities for the validity of wills, otherwise it is void
and cannot transfer ownership.27
The distinguishing characteristics of a donation mortis causa are the following:
1. It conveys no title or ownership to the transferee before the death of the
transferor; or, what amounts to the same thing, that the transferor should
retain the ownership (full or naked) and control of the property while alive;
 2. That before his death, the transfer should be revocable by the transferor
at will, ad nutum; but revocability may be provided for indirectly by means of
a reserved power in the donor to dispose of the properties conveyed;
3. That the transfer should be void if the transferor should survive the
transferee.28
In the donation subject of the present case, there is nothing which indicates that any
right, title or interest in the donated properties was to be transferred to Ursulina prior
to the death of Celestina.
The phrase "to become effective upon the death of the DONOR" means that
Celestina intended to transfer the ownership of the properties to Ursulina on her
death, not during her lifetime.29
More importantly, the provision in the deed stating that if the donee should die before
the donor, the donation shall be deemed rescinded and of no further force and effect
shows that the donation is a postmortem disposition.
In Maglasang v. Heirs of Cabatingan,34 the deeds of donation contained provisions
almost identical to those found in the deed subject of the present case:
That for and in consideration of the love and affection of the DONOR for the
DONEE, x x x. the DONOR does hereby, by these presents, transfer,
convey, by way of donation, unto the DONEE the above-described property,
together with the buildings and all improvements existing thereon, to become
effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the
event that the DONEE should die before the DONOR, the present donation
shall be deemed automatically rescinded and of no further force and effect.
(Emphasis supplied)
As the subject deed then is in the nature of a mortis causa disposition, the formalities
of a will under Article 728 of the Civil Code should have been complied with, failing
which the donation is void and produces no effect. 35
As noted by the trial court, the attesting witnesses failed to acknowledge the deed
before the notary public, thus violating Article 806 of the Civil Code which provides:

As stated in a long line of cases, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered void if the donor
should survive the donee.30
More. The deed contains an attestation clause expressly confirming the donation
as mortis causa:
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)

SIGNED by the above-named donor, Celestina Ganuelas, at the foot of this

deed of donation mortis causa, consisting of two (2) pages and on the left
margin of each and every page thereof in the joint presence of all of us who
at her request and in her presence and that of each other have in like
manner subscribed our names as witnesses.31 (Emphasis supplied)

To classify the donation as inter vivos simply because it is founded on considerations

of love and affection is erroneous. That the donation was prompted by the affection of
the donor for the donee and the services rendered by the latter is of no particular
significance in determining whether the deed constitutes a transfer inter vivos or not,
because a legacy may have an identical motivation.32 In other words, love and
affection may also underline transfers mortis causa.33

96 | S U C C E S S I O N