Beruflich Dokumente
Kultur Dokumente
L-4888 May 25, 1953 hold the attestation clause under consideration sufficient
and valid. It is sufficient if from the language employed it
JOSE MERZA, petitioner, vs. PEDRO LOPEZ can reasonably be deduced that the attestation clause
PORRAS, respondent. TUAZON , J.: fulfills what the law expects of it.
Pilar Montealegre died leaving a will (Exhibit A) and a so- 2 . CA agreed with the trial court that the document having
called codicil (Exhibit B), disinheriting her husband Pedro been executed one day before the testament could not be
Porras and some of her relatives. The two documents considered as a codicil "because a codicil, as the word
were submitted to probate but were denied by the trial implies, is only an addition to, or modification of, the will."
court, upon the grounds such as the defect of the Furthermore, the Court of Appeals observed,
attestation clause on Exh. A and that Exh. B cannot be disinheritance "may not be made in any instrument other
considered a codicil for it was executed by the testator a than the will of testament, as expressly provided for in
day before Exhibit A, thus it cannot be included in the article 849 of the Civil Code," and, "there being no
probate proceedings. disposition as to the disinheritance of the oppositor, Pedro
Lopez Porras (the surviving spouse), in the said Exhibit A,
it is quite clear that he can not be disinherited in any other
The opposition to the testament was predicated on
instrument including codicil, which is just in the nature of
alleged defects of the attestation clause. It was alleged
a simple affidavit."
that the clause did not state that the testatrix and the
witnesses had signed each and every page of the will or
that she had signed the instrument in the presence of the Exhibit B does partake of the nature of a will. A will is
witnesses. The CA dismissed the first objection, finding defined in article 667 of the Civil code of Spain as "the act
that "failure to state such was cured by the fact that each by which a persons dispose of all his property or a portion
one of the page of the instrument appears to be signed by of it," and in article 783 of the new Civil Code as "an act
the testatrix and the three attesting witnesses. whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
ISSUE:
1. Whether or not the attestation clause is sufficient and Being of testamentary character and having been made
valid. with all the formalities of law, Exhibit B is entitled to
probate as an independent testamentary disposition. It is
the general, well-established rule that two separate and
2. Whether or not Exhibit B can be considered as a codicil distinct wills may be probated if one does not revoke the
being executed one day before the testament. other and provided that the statutory requirements relative
to the execution of wills have been complied with.
HELD:
Article 849 of the Civil Code of Spain does not require that
1. YES. It must be admitted that the attestation clause the disinheritance should be accomplished in the same
was very poorly drawn, ungrammatical and difficult to instrument by which the maker provides the disposition of
understand. But in relation to its purpose the implication his or her property after his or death. This article merely
seems clear that the testatrix signed in the presence of provides that "disinheritance can be affected only by a will
the witnesses. Considering that the witnesses' only (any will) in which the legal cause upon which it is based
business at hand was to sign and attest to the testatrix's is expressly stated."
signing of the document, and that the only actors of the
proceeding were the maker and the witnesses acting and It is our judgment therefore that the instruments Exhibit A
speaking collectively and in the first person, the phrase "in and B admitted to probate, subject of courts to the right of
our presence," used as it was in connection with the the disinherited person under particle 850 to contest the
process of signing, can not imply anything but the testatrix disinheritance, and it is so ordered, with costs against the
signed before them. The prepositional phrase "in our appellee.
presence" denotes an active verb and the verb a subject.
The verb could not be other than signed and the subject
no other than the testatrix.
It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void,
being contrary to law.
So ordered.
G.R. No. L-23678 June 6, 1967 petitions filed by the latter three requesting partial
advances on account of their respective legacies.
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor. On January 8, 1964, preparatory to closing its
MARIA CRISTINA BELLIS and MIRIAM PALMA administration, the executor submitted and filed its
BELLIS, oppositors-appellants, "Executor's Final Account, Report of Administration and
vs. Project of Partition" wherein it reported, inter alia, the
EDWARD A. BELLIS, ET AL., heirs-appellees. satisfaction of the legacy of Mary E. Mallen by the delivery
to her of shares of stock amounting to $240,000.00, and
BENGZON, J.P., J.: the legacies of Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis in the amount of P40,000.00 each or
a total of P120,000.00. In the project of partition, the
This is a direct appeal to Us, upon a question purely of
law, from an order of the Court of First Instance of Manila executor pursuant to the "Twelfth" clause of the
dated April 30, 1964, approving the project of partition testator's Last Will and Testament divided the
residuary estate into seven equal portions for the benefit
filed by the executor in Civil Case No. 37089
therein.1wph1.t of the testator's seven legitimate children by his first and
second marriages.
The facts of the case are as follows:
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the
Amos G. Bellis, born in Texas, was "a citizen of the State project of partition on the ground that they were deprived
of Texas and of the United States." By his first wife, Mary of their legitimes as illegitimate children and, therefore,
E. Mallen, whom he divorced, he had five legitimate compulsory heirs of the deceased.
children: Edward A. Bellis, George Bellis (who pre-
deceased him in infancy), Henry A. Bellis, Alexander
Amos Bellis, Jr. interposed no opposition despite notice
Bellis and Anna Bellis Allsman; by his second wife, Violet
to him, proof of service of which is evidenced by the
Kennedy, who survived him, he had three legitimate
registry receipt submitted on April 27, 1964 by the
children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos executor.1
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
After the parties filed their respective memoranda and
other pertinent pleadings, the lower court, on April 30,
On August 5, 1952, Amos G. Bellis executed a will in the
1964, issued an order overruling the oppositions and
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, approving the executor's final account, report and
his distributable estate should be divided, in trust, in the administration and project of partition. Relying upon Art.
16 of the Civil Code, it applied the national law of the
following order and manner: (a) $240,000.00 to his first
decedent, which in this case is Texas law, which did not
wife, Mary E. Mallen; (b) P120,000.00 to his three
provide for legitimes.
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis,
Miriam Palma Bellis, or P40,000.00 each and (c) after the
foregoing two items have been satisfied, the remainder Their respective motions for reconsideration having been
shall go to his seven surviving children by his first and denied by the lower court on June 11, 1964, oppositors-
second wives, namely: Edward A. Bellis, Henry A. Bellis, appellants appealed to this Court to raise the issue of
Alexander Bellis and Anna Bellis Allsman, Edwin G. which law must apply Texas law or Philippine law.
Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.1wph1.t In this regard, the parties do not submit the case on, nor
even discuss, the doctrine of renvoi, applied by this Court
Subsequently, or on July 8, 1958, Amos G. Bellis died a in Aznar v. Christensen Garcia, L-16749, January 31,
resident of San Antonio, Texas, U.S.A. His will was 1963. Said doctrine is usually pertinent where the
admitted to probate in the Court of First Instance of Manila decedent is a national of one country, and a domicile of
on September 15, 1958. another. In the present case, it is not disputed that the
decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming
The People's Bank and Trust Company, as executor of
Texas has a conflict of law rule providing that the
the will, paid all the bequests therein including the amount
domiciliary system (law of the domicile) should govern,
of $240,000.00 in the form of shares of stock to Mary E.
Mallen and to the three (3) illegitimate children, Amos the same would not result in a reference back (renvoi) to
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the
various amounts totalling P40,000.00 each in satisfaction
situs theory (lex rei sitae) calling for the application of the
of their respective legacies, or a total of P120,000.00,
law of the place where the properties are situated, renvoi
which it released from time to time according as the lower
would arise, since the properties here involved are found
court approved and allowed the various motions or
in the Philippines. In the absence, however, of proof as to
the conflict of law rule of Texas, it should not be presumed
different from ours.3 Appellants' position is therefore not chosen to leave, inter alia, the amount of successional
rested on the doctrine of renvoi. As stated, they never rights, to the decedent's national law. Specific provisions
invoked nor even mentioned it in their arguments. Rather, must prevail over general ones.
they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation Appellants would also point out that the decedent
to Article 16 of the Civil Code. executed two wills one to govern his Texas estate and
the other his Philippine estate arguing from this that he
Article 16, par. 2, and Art. 1039 of the Civil Code, render intended Philippine law to govern his Philippine estate.
applicable the national law of the decedent, in intestate or Assuming that such was the decedent's intention in
testamentary successions, with regard to four items: (a) executing a separate Philippine will, it would not alter the
the order of succession; (b) the amount of successional law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
rights; (e) the intrinsic validity of the provisions of the will; 867, 870, a provision in a foreigner's will to the effect that
and (d) the capacity to succeed. They provide that his properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and
ART. 16. Real property as well as personal void, for his national law cannot be ignored in regard to
property is subject to the law of the country where those matters that Article 10 now Article 16 of the
it is situated. Civil Code states said national law should govern.
However, intestate and testamentary The parties admit that the decedent, Amos G. Bellis, was
successions, both with respect to the order of a citizen of the State of Texas, U.S.A., and that under the
succession and to the amount of successional laws of Texas, there are no forced heirs or legitimes.
rights and to the intrinsic validity of testamentary Accordingly, since the intrinsic validity of the provision of
provisions, shall be regulated by the national law the will and the amount of successional rights are to be
of the person whose succession is under determined under Texas law, the Philippine law on
consideration, whatever may he the nature of the legitimes cannot be applied to the testacy of Amos G.
property and regardless of the country wherein Bellis.
said property may be found.
Wherefore, the order of the probate court is hereby
ART. 1039. Capacity to succeed is governed by affirmed in toto, with costs against appellants. So ordered.
the law of the nation of the decedent.
We hereby agree with each other and with the BANK The petition is meritorious.
OF AMERICAN NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred to as the BANK), The conveyance in question is not, first of all, one
that all money now or hereafter deposited by us or of mortis causa, which should be embodied in a will. A will
any or either of us with the BANK in our joint savings has been defined as "a personal, solemn, revocable and
current account shall be the property of all or both of free act by which a capacitated person disposes of his
us and shall be payable to and collectible or property and rights and declares or complies with duties
withdrawable by either or any of us during our lifetime, to take effect after his death." 14 In other words, the
and after the death of either or any of us shall belong bequest or device must pertain to the testator. 15 In this
to and be the sole property of the survivor or case, the monies subject of savings account No. 35342-
survivors, and shall be payable to and collectible or 038 were in the nature of conjugal funds In the case relied
withdrawable by such survivor or survivors. on, Rivera v. People's Bank and Trust Co., 16 we rejected
claims that a survivorship agreement purports to deliver
We further agree with each other and the BANK that one party's separate properties in favor of the other, but
the receipt or check of either, any or all of us during simply, their joint holdings:
xxx xxx xxx xxx xxx xxx
... Such conclusion is evidently predicated on the There is no showing that the funds exclusively belonged
assumption that Stephenson was the exclusive owner to one party, and hence it must be presumed to be
of the funds-deposited in the bank, which assumption conjugal, having been acquired during the existence of
was in turn based on the facts (1) that the account the marita. relations. 20
was originally opened in the name of Stephenson
alone and (2) that Ana Rivera "served only as Neither is the survivorship agreement a donation inter
housemaid of the deceased." But it not infrequently vivos, for obvious reasons, because it was to take effect
happens that a person deposits money in the bank in after the death of one party. Secondly, it is not a donation
the name of another; and in the instant case it also between the spouses because it involved no conveyance
appears that Ana Rivera served her master for about of a spouse's own properties to the other.
nineteen years without actually receiving her salary
from him. The fact that subsequently Stephenson It is also our opinion that the agreement involves no
transferred the account to the name of himself and/or
modification petition of the conjugal partnership, as held
Ana Rivera and executed with the latter the
by the Court of Appeals, 21 by "mere stipulation" 22 and
survivorship agreement in question although there
that it is no "cloak" 23 to circumvent the law on conjugal
was no relation of kinship between them but only that
property relations. Certainly, the spouses are not
of master and servant, nullifies the assumption that prohibited by law to invest conjugal property, say, by way
Stephenson was the exclusive owner of the bank of a joint and several bank account, more commonly
account. In the absence, then, of clear proof to the
denominated in banking parlance as an "and/or" account.
contrary, we must give full faith and credit to the
In the case at bar, when the spouses Vitug opened
certificate of deposit which recites in effect that the
savings account No. 35342-038, they merely put what
funds in question belonged to Edgar Stephenson and
rightfully belonged to them in a money-making venture.
Ana Rivera; that they were joint (and several) owners They did not dispose of it in favor of the other, which would
thereof; and that either of them could withdraw any
have arguably been sanctionable as a prohibited
part or the whole of said account during the lifetime of
donation. And since the funds were conjugal, it can not be
both, and the balance, if any, upon the death of either,
said that one spouse could have pressured the other in
belonged to the survivor. 17
placing his or her deposits in the money pool.
This Court is of the opinion that Exhibit C is an Under Article 2010 of the Code:
aleatory contract whereby, according to article 1790
of the Civil Code, one of the parties or both ART. 2010. By an aleatory contract, one of the parties
reciprocally bind themselves to give or do something or both reciprocally bind themselves to give or to do
as an equivalent for that which the other party is to something in consideration of what the other shall
give or do in case of the occurrence of an event which give or do upon the happening of an event which is
is uncertain or will happen at an indeterminate time. uncertain, or which is to occur at an indeterminate
As already stated, Leonarda was the owner of the time.
house and Juana of the Buick automobile and most
of the furniture. By virtue of Exhibit C, Juana would
Under the aforequoted provision, the fulfillment of an
become the owner of the house in case Leonarda
aleatory contract depends on either the happening of an
died first, and Leonarda would become the owner of
event which is (1) "uncertain," (2) "which is to occur at an
the automobile and the furniture if Juana were to die indeterminate time." A survivorship agreement, the sale
first. In this manner Leonarda and Juana reciprocally of a sweepstake ticket, a transaction stipulating on the
assigned their respective property to one another
value of currency, and insurance have been held to fall
conditioned upon who might die first, the time of death
under the first category, while a contract for life annuity or
determining the event upon which the acquisition of pension under Article 2021, et sequentia, has been
such right by the one or the other depended. This
categorized under the second. 25 In either case, the
contract, as any other contract, is binding upon the element of risk is present. In the case at bar, the risk was
parties thereto. Inasmuch as Leonarda had died the death of one party and survivorship of the other.
before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the However, as we have warned:
automobile and of the furniture if Juana had died
first. 19 xxx xxx xxx
But although the survivorship agreement is per se not
contrary to law its operation or effect may be violative
of the law. For instance, if it be shown in a given case
that such agreement is a mere cloak to hide an
inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it
may be assailed and annulled upon such grounds. No
such vice has been imputed and established against
the agreement involved in this case. 26
No costs.
SO ORDERED.
G.R. No. L-7188 August 9, 1954 The new Civil Code (Republic Act No. 386) under article
810 thereof provides that a person may execute a
In re: Will and Testament of the deceased REVEREND holographic will which must be entirely written, dated and
SANCHO ABADIA. signed by the testator himself and need not be witnessed.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners- It is a fact, however, that at the time that Exhibit "A" was
appellees, executed in 1923 and at the time that Father Abadia died
vs. in 1943, holographic wills were not permitted, and the law
MIGUEL ABADIA, ET AL., oppositors-appellants. at the time imposed certain requirements for the
execution of wills, such as numbering correlatively each
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and page (not folio or sheet) in letters and signing on the left
B. G. Advincula for appellants. hand margin by the testator and by the three attesting
C. de la Victoria for appellees. witnesses, requirements which were not complied with in
Exhibit "A" because the back pages of the first two folios
of the will were not signed by any one, not even by the
MONTEMAYOR, J.: testator and were not numbered, and as to the three front
pages, they were signed only by the testator.
On September 6, 1923, Father Sancho Abadia, parish
priest of Talisay, Cebu, executed a document purporting Interpreting and applying this requirement this Court in the
to be his Last Will and Testament now marked Exhibit "A". case of In re Estate of Saguinsin, 41 Phil., 875, 879,
Resident of the City of Cebu, he died on January 14, referring to the failure of the testator and his witnesses to
1943, in the municipality of Aloguinsan, Cebu, where he sign on the left hand margin of every page, said:
was an evacuee. He left properties estimated at P8,000
in value. On October 2, 1946, one Andres Enriquez, one
. . . . This defect is radical and totally vitiates the
of the legatees in Exhibit "A", filed a petition for its probate
in the Court of First Instance of Cebu. Some cousins and testament. It is not enough that the signatures
guaranteeing authenticity should appear upon
nephews who would inherit the estate of the deceased if
two folios or leaves; three pages having been
he left no will, filed opposition.
written on, the authenticity of all three of them
should be guaranteed by the signature of the
During the hearing one of the attesting witnesses, the alleged testatrix and her witnesses.
other two being dead, testified without contradiction that
in his presence and in the presence of his co-witnesses,
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring
Father Sancho wrote out in longhand Exhibit "A" in
to the same requirement, this Court declared:
Spanish which the testator spoke and understood; that he
(testator) signed on he left hand margin of the front page
of each of the three folios or sheets of which the document From an examination of the document in
is composed, and numbered the same with Arabic question, it appears that the left margins of the six
numerals, and finally signed his name at the end of his pages of the document are signed only by
writing at the last page, all this, in the presence of the Ventura Prieto. The noncompliance with section
three attesting witnesses after telling that it was his last 2 of Act No. 2645 by the attesting witnesses who
will and that the said three witnesses signed their names omitted to sign with the testator at the left margin
on the last page after the attestation clause in his of each of the five pages of the document alleged
presence and in the presence of each other. The to be the will of Ventura Prieto, is a fatal defect
oppositors did not submit any evidence. that constitutes an obstacle to its probate.
The learned trial court found and declared Exhibit "A" to What is the law to apply to the probate of Exh. "A"? May
be a holographic will; that it was in the handwriting of the we apply the provisions of the new Civil Code which not
testator and that although at the time it was executed and allows holographic wills, like Exhibit "A" which provisions
at the time of the testator's death, holographic wills were were invoked by the appellee-petitioner and applied by
not permitted by law still, because at the time of the the lower court? But article 795 of this same new Civil
hearing and when the case was to be decided the new Code expressly provides: "The validity of a will as to its
Civil Code was already in force, which Code permitted the form depends upon the observance of the law in force at
execution of holographic wills, under a liberal view, and to the time it is made." The above provision is but an
carry out the intention of the testator which according to expression or statement of the weight of authority to the
the trial court is the controlling factor and may override affect that the validity of a will is to be judged not by the
any defect in form, said trial court by order dated January law enforce at the time of the testator's death or at the
24, 1952, admitted to probate Exhibit "A", as the Last Will time the supposed will is presented in court for probate or
and Testament of Father Sancho Abadia. The oppositors when the petition is decided by the court but at the time
are appealing from that decision; and because only the instrument was executed. One reason in support of
questions of law are involved in the appeal, the case was the rule is that although the will operates upon and after
certified to us by the Court of Appeals. the death of the testator, the wishes of the testator about
the disposition of his estate among his heirs and among
the legatees is given solemn expression at the time the
will is executed, and in reality, the legacy or bequest then
becomes a completed act. This ruling has been laid down
by this court in the case of In re Will of Riosa, 39 Phil., 23.
It is a wholesome doctrine and should be followed.
The proponent-appellant assigns the following as alleged Such a result based upon solidly established facts would
errors of the lower court: be the same whether or not it be technically held that said
will, in order to be valid, must be written in the Ilocano
1. In holding that in order to be valid the will in dialect; whether or not the Igorrote or Inibaloi dialect is a
question should have been drawn up in the cultivated language and used as a means of
Ilocano dialect. communication in writing, and whether or not the testator
Piraso knew the Ilocano dialect well enough to
2. In not holding that the testator Piraso did not understand a will written in said dialect. The fact is, we
know the Ilocano dialect well enough to repeat, that it is quite certain that the instrument Exhibit A
understand a will drawn up in said dialect. was written in English which the supposed testator Piraso
did not know, and this is sufficient to invalidate said will
3. In refusing to admit the will in question to according to the clear and positive provisions of the law,
probate. and inevitably prevents its probate.
The fundamental errors assigned refer chiefly to the part The judgment appealed from is affirmed, with the costs of
of the judgment which reads as follows: this instance against the appellant. So ordered.
There is nothing in the language of section 618 of the The judgment of the court below is affirmed, eliminating
Code of Civil Procedure which supports the claim of the therefrom, however, the clause "el cual debera ejecutarse
appellants that the will must be written by the testator fiel y exactamente en todas sus partes." The costs of this
himself or by someone else in his presence and under his instance will be charged against the appellants.
express direction. That section requires (1) that the will be
in writing and (2) either that the testator sign it himself or,
if he does sign it, that it be signed by some one in his
presence and by his express direction. Who does the
mechanical work of writing the will is a matter of
indifference. The fact, therefore, that in this case the will
was typewritten in the office of the lawyer for the testratrix
is of no consequence. The English text of section 618 is
very plain. The mistakes in translation found in the first
Spanish edition of the code have been corrected in the
second.
Marina in her answer to Nenita's motion to set aside the Nenita denounced Judge Honrado for having acted
proceedings admitted that Marilyn was not Marcelina's corruptly in allowing Marina and her cohorts to withdraw
granddaughter but was the daughter of Agapito and from various banks the deposits Marcelina.
Arsenia de la Cruz and that Agapito was not Marcelina's
sonbut merely an anak-anakan who was not legally
She also denounced Evangeline S. Yuipco, the deputy
adopted (p. 143, Record).
clerk of court, for not giving her access to the record of
the probate case by alleging that it was useless for Nenita
Judge Honrado in his order of July 17, 1975 dismissed to oppose the probate since Judge Honrado would not
Nenita's counter-petition for the issuance of letters of change his decision. Nenita also said that Evangeline
administration because of the non-appearance of her insinuated that if she (Nenita) had ten thousand pesos,
the case might be decided in her favor. Evangeline
allegedly advised Nenita to desist from claiming the We hold that disciplinary action should be taken against
properties of the testatrix because she (Nenita) had no respondent judge for his improper disposition of the
rights thereto and, should she persist, she might lose her testate case which might have resulted in a miscarriage
pension from the Federal Government. of justice because the decedent's legal heirs and not the
instituted heiress in the void win should have inherited the
Judge Honrado in his brief comment did not deal decedent's estate.
specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from A judge may be criminally liable or knowingly rendering
the decree of probate and that in a motion dated July 6, an unjust judgment or interlocutory order or rendering a
1976 she asked for a thirty day period within which to manifestly unjust judgment or interlocutory order by
vacate the house of the testatrix. reason of inexcusable negligence or ignorance (Arts. 204
to 206, Revised Penal Code).
Evangeline S. Yuipco in her affidavit said that she never
talked with Nenita and that the latter did not mention Administrative action may be taken against a judge of the
Evangeline in her letter dated September 11, 1978 to court of first instance for serious misconduct or
President Marcos. inefficiency ( Sec. 67, Judiciary Law). Misconduct implies
malice or a wrongful intent, not a mere error of judgment.
Evangeline branded as a lie Nenita's imputation that she "For serious misconduct to exist, there must be reliable
(Evangeline) prevented Nenita from having access to the evidence showing that the judicial acts complained of
record of the testamentary proceeding. Evangeline was were corrupt or inspired by an intention to violate the law,
not the custodian of the record. Evangeline " strongly, or were in persistent disregard of well-known legal rules"
vehemently and flatly denied" Nenita's charge that she (In relmpeachment of Horrilleno, 43 Phil. 212, 214-215).
(Evangeline) said that the sum of ten thousand pesos was
needed in order that Nenita could get a favorable Inefficiency implies negligence, incompetence, ignorance
decision. Evangeline also denied that she has any and carelessness. A judge would be inexcusably
knowledge of Nenita's pension from the Federal negligent if he failed to observe in the performance of his
Government. duties that diligence, prudence and circumspection which
the law requires in the rendition of any public service (In
The 1978 complaint against Judge Honorado was brought re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55
to attention of this Court in the Court Administrator's SCRA 107, 119).
memorandum of September 25, 1980. The case was
referred to Justice Juan A. Sison of the Court of Appeals In this case, respondent judge, on perusing the will and
for investigation, report and recommendation. He noting that it was written in English and was thumbmarked
submitted a report dated October 7, 1981. by an obviously illiterate testatrix, could have readily
perceived that the will is void.
On December 14, 1978, Nenita filed in the Court of
Appeals against Judge Honrado a petition for certiorari In the opening paragraph of the will, it was stated that
and prohibition wherein she prayed that the will, the English was a language "understood and known" to the
decree of probate and all the proceedings in the probate testatrix. But in its concluding paragraph, it was stated
case be declared void. that the will was read to the testatrix "and translated into
Filipino language". (p. 16, Record of testate case). That
Attached to the petition was the affidavit of Domingo P. could only mean that the will was written in a language
Aquino, who notarized the will. He swore that the testatrix not known to the illiterate testatrix and, therefore, it is void
and the three attesting witnesses did not appear before because of the mandatory provision of article 804 of the
him and that he notarized the will "just to accommodate a Civil Code that every will must be executed in a language
brother lawyer on the condition" that said lawyer would or dialect known to the testator. Thus, a will written in
bring to the notary the testatrix and the witnesses but the English, which was not known to the Igorot testator, is
lawyer never complied with his commitment. void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The Court of Appeals dismissed the petition because The hasty preparation of the will is shown in the
Nenita's remedy was an appeal and her failure to do so attestation clause and notarial acknowledgment where
did not entitle her to resort to the special civil action of Marcelina Salvador Suroza is repeatedly referred to as
certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, the "testator" instead of "testatrix".
May 24, 1981).
Had respondent judge been careful and observant, he
Relying on that decision, Judge Honrado filed on could have noted not only the anomaly as to the language
November 17, 1981 a motion to dismiss the administrative of the will but also that there was something wrong in
case for having allegedly become moot and academic. instituting the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father who was
still alive.
Furthermore, after the hearing conducted by respondent
deputy clerk of court, respondent judge could have
noticed that the notary was not presented as a witness.
SO ORDERED.
G.R. No. L-10907 June 29, 1957 On March 8, 1956, Aurea Matins asked that said order of
February 27, 1956, be set aside and that she be
AUREA MATIAS, petitioner, appointed special co-administratrix, jointly with Horacio
vs. Rodriguez, upon the ground that Basilia Salud is over
HON. PRIMITIVO L. GONZALEZ, ETC., ET eighty (80) years of age, totally blind and physically
AL., respondents. incapacitated to perform the duties of said office, and that
said movant is the universal heiress of the deceased and
J. Gonzales Orense for petitioner. the person appointed by the latter as executrix of her
Venancio H. Aquino for respondents. alleged will. This motion was denied in an order dated
March 10, 1956, which maintained "the appointment of
the three above named persons" Basilia Salud, Ramon
CONCEPCION, J.: Plata and Victorina Salud "for the management of the
estate of the late Gabina Raquel pending final decision on
Petitioner Aurea Matias seeks a writ of certiorari to annul the probate of the alleged will of said decedent." However,
certain orders of Hon. Primitivo L. Gonzales, as Judge of on March 17, 1956, Basilia Salud tendered her
the Court of First Instance of Cavite, in connection with resignation as special administratrix by reason of physical
Special Proceedings No. 5213 of said court, entitled disability, due to old age, and recommended the
"Testate Estate of the Deceased Gabina Raquel." appointment, in her place, of Victorina Salud. Before any
action could be taken thereon, or on March 21, 1956,
On May 15, 1952, Aurea Matias initiated said special Aurea Matias sought a reconsideration of said order of
proceedings with a petition for the probate of a document March 10, 1956. Moreover, on March 24, 1956, she
purporting to be the last will and testament of her aunt, expressed her conformity to said resignation, but objected
Gabina Raquel, who died single on May 8, 1952, at the to the appointment, in lieu of Basilia Salud, of Victorina
age of 92 years. The heir to the entire estate of the Salud, on account of her antagonism to said Aurea Matias
deceased except the properties bequeathed to her she (Victorina Salud) having been the principal and
other niece and nephews, namely, Victorina Salud, most interested witness for the opposition to the probate
Santiago Salud, Policarpio Salud, Santos Matias and of the alleged will of the deceased and proposed that
Rafael Matias is, pursuant to said instrument, Aurea the administration of her estate be entrusted to the
Matias, likewise, appointed therein as executrix thereof, Philippine National Bank, the Monte de Piedad, the Bank
without bond. Basilia Salud, a first cousin of the of the Philippine Islands, or any other similar institution
deceased, opposed the probate of her alleged will, and, authorized by law therefor, should the court be reluctant
after appropriate proceedings, the court, presided over by to appoint the movant as special administratrix of said
respondent Judge, issued an order, dated February 8, estate. This motion for reconsideration was denied on
1956, sustaining said opposition and denying the petition March 26, 1956.
for probate. Subsequently, Aurea Matias brought the
matter on appeal to this Court (G.R. No. L-10751), where Shortly afterwards, or on June 18, 1956, respondents
it is now pending decision. Ramon Plata and Victorina Salud requested authority to
collect the rents due, or which may be due, to the estate
Meanwhile, or on February 17, 1956, Basilia Salud moved of the deceased and to collect all the produce of her lands,
for the dismissal of Horacio Rodriguez, as special which was granted on June 23, 1956. On June 27, 1956,
administrator of the estate of the deceased, and the said respondents filed another motion praying for
appointment, in his stead of Ramon Plata. The motion permission to sell the palay of the deceased then
was set for hearing on February 23, 1956, on which date deposited in different rice mills in the province of Cavite,
the court postponed the hearing to February 27, 1956. which respondent judge granted on June 10, 1956. Later
Although notified of this order, Rodriguez did not appear on, or on July 10, 1956, petitioner instituted the present
on the date last mentioned. Instead, he filed an urgent action against Judge Gonzales, and Victorina Salud and
motion praying for additional time within which to answer Ramon Plata, for the purpose of annulling the above
the charges preferred against him by Basilia Salud and mentioned orders of respondent Judge, upon the ground
for another postponement of said hearing. This motion that the same had been issued with grave abuse of
was not granted, and Basilia Salud introduced evidence discretion amounting to lack or excess of jurisdiction.
in support of said charges, whereupon respondent Judge
by an order, dated February 27, 1956, found Rodriguez In support of this pretense, it is argued that petitioner
guilty of abuse of authority and gross negligence, and, should have preference in the choice of special
accordingly, relieved him as special administrator of the administratrix of the estate of the decedent, she
estate of the deceased and appointed Basilia Salud as (petitioner) being the universal heiress to said estate and,
special administratrix thereof, to "be assisted and advised the executrix appointed in the alleged will of the
by her niece, Miss Victorina Salud," who "shall always act deceased, that until its final disallowance which has
as aide, interpreter and adviser of Basilia Salud." Said not, as yet, taken place she has a special interest in said
order, likewise, provided that "Basilia Salud shall be estate, which must be protected by giving representation
helped by Mr. Ramon Plata . . . who is hereby appointed thereto in the management of said estate; that, apart from
as co-administrator." denying her any such representation, the management
was given to persons partial to her main opponent,
namely, Basilia Salud, inasmuch as Victorina Salud is and Ramon Plata. Indeed, in the order of March 10, 1956,
allied to her and Ramon Plata is a very close friend of one respondent Judge maintained "the appointment of the
of her (Basilia Salud's) attorneys; that Basilia Salud was three (3) above-named persons for the management of
made special administratrix despite her obvious unfitness the estate of the late Gabina Raquel."
for said office, she being over eighty (80) years of age and
blind; that said disability is borne out by the fact that on 5. Soon after the institution of said Special Proceedings
March 17, 1956, Basilia Salud resigned as special No. 5213, an issue arose between Aurea Matias and
administratrix upon such ground; that the Rules of Court Basilia Salud regarding the person to be appointed
do not permit the appointment of more than one special special administrator of the estate of the deceased. The
administrator; that Horacio Rodriguez was removed former proposed Horacio Rodriguez, whereas the latter
without giving petitioner a chance to be heard in urged the appointment of Victorina Salud. By an order
connection therewith; and that Ramon Plata and Victorina dated August 11, 1952, the Court, then presided over by
Salud were authorized to collect the rents due to the Hon. Jose Bernabe, Judge, decided the matter in favor of
deceased and the produce of her lands, as well to sell her Horacio Rodriguez and against Victorina Salud, upon the
palay, without previous notice to the petitioner herein. ground that, unlike the latter, who, as a pharmacist and
employee in the Santa Isabel Hospital, resides In the City
Upon the other hand, respondents maintain that of Manila, the former, a practicing lawyer and a former
respondent Judge acted with the scope of his jurisdiction public prosecutor, and later, mayor of the City of Cavite,
and without any abuse of discretion; that petitioner can is a resident thereof. In other words, the order of resident
not validly claim any special interest in the estate of the thereof. In other words, the order of respondent Judge of
deceased, because the probate of the alleged will and February 27, 1956, removing Rodriguez and appointing
testament of the latter upon which petitioner relies Victorina Salud to the management of the estate,
has been denied; that Horacio Rodriguez was duly amounted to a reversal of the aforementioned order of
notified of the proceedings for his removal; and that Judge Bernabe of August 11, 1952.
Victorina Salud and Ramon Plata have not done anything
that would warrant their removal. 6. Although the probate of the alleged will and testament
of Gabina Raquel was denied by respondent Judge, the
Upon a review of the record, we find ourselves unable to order to this effect is not, as yet, final and executory. It is
sanction fully the acts of respondent Judge, for the pending review on appeal taken by Aurea Matias. The
following reasons: probate of said alleged will being still within realm of legal
possibility, Aurea Matias has as the universal heir and
1. Although Horacio Rodriguez had notice of the hearing executrix designated in said instrument a special
of the motion for his removal, dated February 17, 1956, interest to protect during the pendency of said appeal.
the record shows that petitioner herein received copy of Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz.,
said motion of February 24, 1956, or the date after that 2058), this Court held that a widow, designated as
set for the hearing thereof. Again, notice of the order of executrix in the alleged will and testament of her
respondent Judge, dated February 23, 1956, postponing deceased husband, the probate of which had denied in an
said hearing to February 27, 1956, was not served on order pending appeal, "has . . . the same beneficial
petitioner herein. interest after the decision of the court disapproving the
will, which is now pending appeal, because the decision
is not yet final and may be reversed by the appellate
2. In her motion of February 17, 1956, Basilia Salud
court."
prayed for the dismissal of Horacio Rodriguez, and the
appointment of Ramon Plata, as special administrator of
said estate. Petitioner had, therefore, no notice that her 7. The record shows that there are, at least two (2)
main opponent, Basilia Salud, and the latter's principal factions among the heirs of the deceased, namely, one,
witness, Victorina Salud, would be considered for the represented by the petitioner, and another, to which
management of said. As a consequence, said petitioner Basilia Salud and Victorina Salud belong. Inasmuch as
had no opportunity to object to the appointment of Basilia the lower court had deemed it best to appoint more than
Salud as special administratrix, and of Victorina Salud, as one special administrator, justice and equity demands
her assistant and adviser, and the order of February 27, that both factions be represented in the management of
1956, to this effect, denied due process to said petitioner. the estate of the deceased.
3. Said order was issued with evident knowledge of the The rule, laid down in Roxas vs. Pecson (supra), to the
physical disability of Basilia Salud. Otherwise respondent effect that "only one special administrator may be
Judge would not have directed that she "be assisted and appointed to administrator temporarily" the estate of the
advised by her niece Victorina Salud," and that the latter deceased, must be considered in the light of the facts
"shall always act as aide, interpreter and adviser of obtaining in said case. The lower court appointed therein
Basilia Salud." one special administrator for some properties forming part
of said estate, and a special administratrix for other
properties thereof. Thus, there were two (2) separate and
4. Thus, respondent Judge, in effect, appointed three (3)
independent special administrators. In the case at bar
special administrators Basilia Salud, Victorina Salud
there is only one (1) special administration, the powers of
which shall be exercised jointly by two special co-
administrators. In short, the Roxas case is not squarely in
point. Moreover, there are authorities in support of the
power of courts to appoint several special co-
administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs.
Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49;
Davenport vs. Davenport, 60 A. 379).
A. M. Jimenez for appellant. The court seems , by inference at least, to have had in
Ramon Querubin for appellees. mind that under the law relating to the execution of a will
it is necessary that the person who signs the name of the
MORELAND, J.: testatrix must afterwards sign his own name; and that, in
view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her
This case is closely connected with the case of Faustino name, being, from its appearance, not the same
Cabacungan vs. Pedro Barut and another, No. 6284,1 just handwriting as that constituting the name of the testatrix,
decided by this court, wherein there was an application the will is accordingly invalid, such fact indicating that the
for the probate of an alleged last will and testament of the person who signed the name of the testatrix failed to sign
same person the probate of whose will is involved in this his own. We do not believe that this contention can be
suit. sustained. Section 618 of the Code of Civil Procedure
reads as follows:
This appeal arises out of an application on the part of
Pedro Barut to probate the last will and testament of Maria No will, except as provided in the preceding
Salomon, deceased. It is alleged in the petition of the section, shall be valid to pass any estate, real or
probate that Maria Salomon died on the 7th day of personal, nor charge or effect the same, unless it
November, 1908, in the pueblo of Sinait, Ilocos Sur, be in writing and signed by the testator, or by the
leaving a last will and testament bearing date March 2, testator's name written by some other person in
1907. Severo Agayan, Timotea Inoselda, Catalino his presence, and by his expenses direction, and
Ragasa, and A. M. Jimenez are alleged to have been attested and subscribed by three or more credible
witnesses to the execution thereof. By the terms of said witnesses in the presence of the testator and of
will Pedro Barut received the larger part of decedent's each. . . .
property.
This is the important part of the section under the terms
The original will appears on page 3 of the record and is in of which the court holds that the person who signs the
the Ilocano dialect. Its translation into Spanish appears at name of the testator for him must also sign his own name
page 11. After disposing of her property the testatrix The remainder of the section reads:
revoked all former wills by her made. She also stated in
said will that being unable to read or write, the same had
The attestation shall state the fact that the
been read to her by Ciriaco Concepcion and Timotea
testator signed the will, or caused it to be signed
Inoselda and that she had instructed Severo Agayan to
sign her name to it as testatrix. by some other person, at his express direction, in
the presence of three witnesses, and that they
attested and subscribed it in his presence and in
The probate of the will was contested and opposed by a the presence of each other. But the absence of
number of the relatives of the deceased on various such form of attestation shall not render the will
grounds, among them that a later will had been executed invalid if it is proven that the will was in fact signed
by the deceased. The will referred to as being a later will and attested as in this section provided.
is the one involved in case No. 6284 already referred to.
Proceeding for the probate of this later will were pending
From these provisions it is entirely clear that, with respect
at the time. The evidence of the proponents and of the
to the validity of the will, it is unimportant whether the
opponents was taken by the court in both cases for the
purpose of considering them together. person who writes the name of the testatrix signs his own
or not. The important thing is that it clearly appears that
the name of the testatrix was signed at her express
In the case before us the learned probate court found that direction in the presence of three witnesses and that they
the will was not entitled to probate upon the sole ground attested and subscribed it in her presence and in the
that the handwriting of the person who it is alleged signed presence of each other. That is all the statute requires. It
the name of the testatrix to the will for and on her behalf may be wise as a practical matter that the one who signs
looked more like the handwriting of one of the other the testator's name signs also his own; but that it is not
witnesses to the will than that of the person whose essential to the validity of the will. Whether one parson or
handwriting it was alleged to be. We do not believe that another signed the name of the testatrix in this case is
the mere dissimilarity in writing thus mentioned by the absolutely unimportant so far as the validity of her will is
court is sufficient to overcome the uncontradicted concerned. The plain wording of the statute shows that
testimony of all the witnesses to the will that the signature the requirement laid down by the trial court, if it did lay
down, is absolutely unnecessary under the law; and the written by the witness signing at the request of the
reasons underlying the provisions of the statute relating testator.
to the execution of wills do not in any sense require such
a provision. From the standpoint of language it is an The only question for decision in that case, as we have
impossibility to draw from the words of the law the before stated, was presented by the fact that the person
inference that the persons who signs the name of the who was authorized to sign the name of the testator to the
testator must sign his own name also. The law requires will actually failed to sign such name but instead
only three witnesses to a will, not four. signed his own thereto. The decision in that case related
only to that question.
Nor is such requirement found in any other branch of the
law. The name of a person who is unable to write may be Aside from the presentation of an alleged subsequent will
signed by another by express direction to any instrument the contestants in this case have set forth no reason
known to the law. There is no necessity whatever, so far whatever why the will involved in the present litigation
as the validity of the instrument is concerned, for the should not be probated. The due and legal execution of
person who writes the name of the principal in the the will by the testatrix is clearly established by the proofs
document to sign his own name also. As a matter of policy in this case. Upon the facts, therefore, the will must be
it may be wise that he do so inasmuch as it would give probated. As to the defense of a subsequent will, that is
such intimation as would enable a person proving the resolved in case No. 6284 of which we have already
document to demonstrate more readily the execution by spoken. We there held that said later will not the will of the
the principal. But as a matter of essential validity of the deceased.
document, it is unnecessary. The main thing to be
established in the execution of the will is the signature of
The judgment of the probate court must be and is hereby
the testator. If that signature is proved, whether it be
reversed and that court is directed to enter an order in the
written by himself or by another at his request, it is none
usual form probating the will involved in this litigation and
the less valid, and the fact of such signature can be to proceed with such probate in accordance with law.
proved as perfectly and as completely when the person
signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the
lack of the signature of the person signing the name of the
principal is, in the particular case, a complete abrogation
of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
This would not be the first time that this Court departs from
a strict and literal application of the statutory
requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated
(Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a
will, the failure to make the first page either by letters or
numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil.
429). These precedents exemplify the Court's policy to
require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will
is in existence and available, the duplicate (Exh. A-1) is
not entitled to probate. Since they opposed probate of
original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here
into a dilemma; if the original is defective and invalid, then
in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to
the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate,
Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was
inadvertent and not intentional.
PARAS, C.J.:
On December 31, 1948, Manolita G. de Carungcong filed IKALABING-DALAWA. Na ang aking HULING
in the same court a petition (Special Proceeding No. 838) BILIN AT TESTAMENTONG ito ay binubuo ng
for the probate of another alleged will executed by the PITONG (7) dahon o pagina na may bilang na
testatrix on May 5, 1945 (Exhibit 1Manolita G. sunud-sunod at ang bawa't dahon o pagina ay
Carungcong), leaving to Manolita G. de Carungcong the mayroong tunay kong lagda o firma, gayon din
greater bulk of the estate, without impairing the legitimes ang lahat ng aking saksi o testigos.
of the other children.
SA KATUNAYAN ng lahat ng isinasaysay ko dito
In his opposition filed on February 16, 1949, Alejandro ay aking nilagdaan ito dito sa Imus, Kavite,
Gonzales, Jr. sought the disallowance of the wills Filipinas ngayong ika-5 ng Mayo ng taong 1945,
executed on November 16, 1942, and May 5, 1945, on na nakaharap dito sa ating paglagda o pagfirma
the ground that, assuming their validity, they had been ang tatlong saksi o testigos. At aking ding
revoked by the testatrix in an instrument executed by her nilagdaan o pinirmahan ang tagilirang kaliwa ng
on November 18, 1948 (Exhibit 2Alejandro and Juan lahat at bawa't dahon o pagina nitong testamento
Gonzales), with the result that her estate should be kong ito sa harap ng lahat at bawa't isang saksi o
distributed as if she died intestate. testigos at ang lahat at bawa't isa naman sa
kanila ay nangagsilagda o nagsifirma din dito
With the exception of Leopoldo Gonzales, the children of bilang saksi ko sa harap ko at sa harap ng lahat
the testatrix filed mutual oppositions to one or the other at bawa't isa sa kanila, at ganoon din silang mga
instruments tending to negative their respective positions. saksi ko ay nangag-lagda o nagsi-firma sa
tagilirang kaliwa ng lahat at bawa't isa sa mga
dahon o pagina nitong aking testamento.
After a joint hearing, the Court of First Instance of Rizal
rendered a decision with the following dispositive
pronouncements: (Sgd.) MANUELA Y. VDA. DE GONZALES
MANUELA IBARRA VDA. DE GONZALES
All facts considered in the light of the evidence
presented and in the manner in which the
witnesses testified the court concludes and holds: Mga Saksi o Testigos:
GUTIERREZ, JR. J.: Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or
This is a petition for review of the orders issued by the motion filed ex parte. In the same order of denial, the
Court of First Instance of Southern Leyte, Branch III, in motion for the appointment of special administrator was
Special Proceedings No. R-1713, entitled "In the Matter likewise denied because of the petitioner's failure to
of the Petition for Probate of the Will of Dorotea Perez, comply with the order requiring him to submit the names
Deceased; Apolonio Taboada, Petitioner", which denied of' the intestate heirs and their addresses.
the probate of the will, the motion for reconsideration and
the motion for appointment of a special administrator. The petitioner decided to file the present petition.
In the petition for probate filed with the respondent court, For the validity of a formal notarial will, does Article 805 of
the petitioner attached the alleged last will and testament the Civil Code require that the testatrix and all the three
of the late Dorotea Perez. Written in the Cebuano- instrumental and attesting witnesses sign at the end of
Visayan dialect, the will consists of two pages. The first the will and in the presence of the testatrix and of one
page contains the entire testamentary dispositions and is another?
signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
Article 805 of the Civil Code provides:
instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3) Every will, other than a holographic will, must be
attesting witnesses and at the left hand margin by the subscribed at the end thereof by the testator himself
testatrix. 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
Since no opposition was filed after the petitioner's credible witnesses in the presence of the testator and
compliance with the requirement of publication, the trial of one another.
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang, The testator or the person requested by him to write
one of the subscribing witnesses to the will, who testified his name and the instrumental witnesses of the will,
on its genuineness and due execution. 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
The trial court, thru then Presiding Judge Ramon C.
placed on the upper part of each page.
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 The attestation shall state the number of pages used
required to submit the names of the intestate heirs with upon which the will is written, and the fact that the
their corresponding addresses so that they could be testator signed the will and every page thereof, or
properly notified and could intervene in the summary caused some other person to write his name, under
settlement of the estate. 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
Instead of complying with the order of the trial court, the
presence of the testator and of one another.
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 If the attestation clause is in a language not known to
disallowance of the will. He also asked that the ten-day the witnesses, it shall be interpreted to the witnesses,
period required by the court to submit the names of it shall be interpreted to them.
intestate heirs with their addresses be held in abeyance.
The respondent Judge interprets the above-quoted
The petitioner filed a motion for reconsideration of the provision of law to require that, for a notarial will to be
order denying the probate of the will. However, the motion valid, it is not enough that only the testatrix signs at the
together with the previous manifestation and/or motion "end" but an the three subscribing witnesses must also
could not be acted upon by the Honorable Ramon C. sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting the manner of their execution with the end in view of giving
witnesses to a will attest not merely the will itself but also the testator more freedom in expressing his last wishes
the signature of the testator. It is not sufficient compliance but with sufficient safeguards and restrictions to prevent
to sign the page, where the end of the will is found, at the the commission of fraud and the exercise of undue and
left hand margin of that page. improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect
On the other hand, the petitioner maintains that Article to the formalities in the execution of a will" (Report of the
805 of the Civil Code does not make it a condition Code commission, p. 103).
precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the Parenthetically, Judge Ramon C. Pamatian stated in his
subscribing witnesses should be specifically located at questioned order that were not for the defect in the place
the end of the wig after the signature of the testatrix. He of signatures of the witnesses, he would have found the
contends that it would be absurd that the legislature testimony sufficient to establish the validity of the will.
intended to place so heavy an import on the space or
particular location where the signatures are to be found The objects of attestation and of subscription were fully
as long as this space or particular location wherein the met and satisfied in the present case when the
signatures are found is consistent with good faith and the instrumental witnesses signed at the left margin of the
honest frailties of human nature. sole page which contains all the testamentary
dispositions, especially so when the will was properly
We find the petition meritorious. Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no
Undoubtedly, under Article 805 of the Civil Code, the will question of fraud or substitution behind the questioned
must be subscribed or signed at its end by the testator order.
himself or by the testator's name written by another
person in his presence, and by his express direction, and We have examined the will in question and noticed that
attested and subscribed by three or more credible the attestation clause failed to state the number of pages
witnesses in the presence of the testator and of one used in writing the will. This would have been a fatal
another. defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and actually
It must be noted that the law uses the composed of only two pages duly signed by the testatrix
terms attested and subscribed Attestation consists in and her instrumental witnesses. As earlier stated, the first
witnessing the testator's execution of the will in order to page which contains the entirety of the testamentary
see and take note mentally that those things are, done dispositions is signed by the testatrix at the end or at the
which the statute requires for the execution of a will and bottom while the instrumental witnesses signed at the left
that the signature of the testator exists as a fact. On the margin. The other page which is marked as "Pagina dos"
other hand, subscription is the signing of the witnesses' comprises the attestation clause and the
names upon the same paper for the purpose of acknowledgment. The acknowledgment itself states that
Identification of such paper as the will which was "This Last Will and Testament consists of two pages
executed by the testator. (Ragsdale v. Hill, 269 SW 2d including this page".
911).
In Singson v. Florentino, et al. (92 Phil. 161, 164), this
Insofar as the requirement of subscription is concerned, it Court made the following observations with respect to the
is our considered view that the will in this case was purpose of the requirement that the attestation clause
subscribed in a manner which fully satisfies the purpose must state the number of pages used:
of Identification.
The law referred to is article 618 of the Code of Civil
The signatures of the instrumental witnesses on the left Procedure, as amended by Act No. 2645, which
margin of the first page of the will attested not only to the requires that the attestation clause shall state the
genuineness of the signature of the testatrix but also the number of pages or sheets upon which the win is
due execution of the will as embodied in the attestation written, which requirement has been held to be
clause. 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
While perfection in the drafting of a will may be desirable,
the property is intended to be bequeathed (In re will
unsubstantial departure from the usual forms should be
of Andrada, 42 Phil., 180; Uy Coque vs. Navas L.
ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449). 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
The law is to be liberally construed, "the underlying and cases seems to be that the attestation clause must
fundamental objective permeating the provisions on the contain a statement of the number of sheets or pages
law on wills in this project consists in the liberalization of 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.
SO ORDERED.
G.R. No. L-32213 November 26, 1973 After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant
AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE that the last will and testament in question was not
GUILLERMO P. VILLASOR, Presiding Judge of executed in accordance with law. The notary public before
Branch I, Court of First Instance of Cebu, and whom the will was acknowledged cannot be considered
MANUEL B. LUGAY, respondents. as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To
ESGUERRA, J.: 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
Petition to review on certiorari the judgment of the Court "before" means in front or preceding in space or ahead of.
First Instance of Cebu allowing the probate of the last will (The New Webster Encyclopedic Dictionary of the English
a testament of the late Valente Z. Cruz. Petitioner- Language, p. 72; Funk & Wagnalls New Standard
appellant Agapita N. Cruz, the surviving spouse of the Dictionary of the English Language, p. 252; Webster's
said decease opposed the allowance of the will (Exhibit New International Dictionary 2d. p. 245.) Consequently, if
"E"), alleging the will was executed through fraud, deceit, the third witness were the notary public himself, he would
misrepresentation and undue influence; that the said have to avow assent, or admit his having signed the will
instrument was execute without the testator having been in front of himself. This cannot be done because he
fully informed of the content thereof, particularly as to cannot split his personality into two so that one will appear
what properties he was disposing and that the supposed before the other to acknowledge his participation in the
last will and testament was not executed in accordance making of the will. To permit such a situation to obtain
with law. Notwithstanding her objection, the Court allowed would be sanctioning a sheer absurdity.
the probate of the said last will and testament Hence this
appeal by certiorari which was given due course.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral
The only question presented for determination, on which arrangement Balinon v. De Leon, 50 0. G. 583.) That
the decision of the case hinges, is whether the supposed function would defeated if the notary public were one of
last will and testament of Valente Z. Cruz (Exhibit "E") was the attesting instrumental witnesses. For them he would
executed in accordance with law, particularly Articles 805 be interested sustaining the validity of the will as it directly
and 806 of the new Civil Code, the first requiring at least involves him and the validity of his own act. It would place
three credible witnesses to attest and subscribe to the will, him in inconsistent position and the very purpose of
and the second requiring the testator and the witnesses acknowledgment, which is to minimize fraud (Report of
to acknowledge the will before a notary public. Code Commission p. 106-107), would be thwarted.
Of the three instrumental witnesses thereto, namely Admittedly, there are American precedents holding that
Deogracias T. Jamaloas Jr., Dr. Francisco Paares and notary public may, in addition, act as a witness to the
Atty. Angel H. Teves, Jr., one of them, the last named, is executive of the document he has notarized. (Mahilum v.
at the same time the Notary Public before whom the will Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v.
was supposed to have been acknowledged. Reduced to Cox, 43 Ill. 130). There are others holding that his signing
simpler terms, the question was attested and subscribed merely as notary in a will nonetheless makes him a
by at least three credible witnesses in the presence of the witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;
testator and of each other, considering that the three In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269
attesting witnesses must appear before the notary public S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re
to acknowledge the same. As the third witness is the Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A.
notary public himself, petitioner argues that the result is 721; See also Trenwith v. Smallwood, 15 So. 1030). But
that only two witnesses appeared before the notary public these authorities do not serve the purpose of the law in
to acknowledge the will. On the other hand, private this jurisdiction or are not decisive of the issue herein
respondent-appellee, Manuel B. Lugay, who is the because the notaries public and witnesses referred to
supposed executor of the will, following the reasoning of aforecited cases merely acted as instrumental,
the trial court, maintains that there is substantial subscribing attesting witnesses, and not
compliance with the legal requirement of having at least as acknowledging witnesses. He the notary public acted
three attesting witnesses even if the notary public acted not only as attesting witness but also acknowledging
as one of them, bolstering up his stand with 57 American witness, a situation not envisaged by Article 805 of the
Jurisprudence, p. 227 which, insofar as pertinent, reads Civil Code which reads:
as follows:
ART. 806. Every will must be acknowledged before a
It is said that there are, practical reasons for upholding notary public by the testator and the witnesses. The
a will as against the purely technical reason that one notary public shall not be required to retain a copy of
of the witnesses required by law signed as certifying to the will or file another with the office of the Clerk of
an acknowledgment of the testator's signature under Court. [Emphasis supplied]
oath rather than as attesting the execution of the
instrument.
To allow the notary public to act as third witness, or one
the attesting and acknowledging witnesses, would have
the effect of having only two attesting witnesses to the will
which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses to
act as such and of Article 806 which requires that the
testator and the required number of witnesses must
appear before the notary public to acknowledge the will.
The result would be, as has been said, that only two
witnesses appeared before the notary public for or that
purpose. In the circumstances, the law would not be duly
in observed.
On 25 August 1966, the Court issued an order admitting On 15 December 1965, with that motion for removal
to probate the 1960 will of Gliceria A. del Rosario (Exhibit pending in the court, the oppositors requested the
"D"). In declaring the due execution of the will, the probate Register of Deeds of Manila to annotate a notice of lis
court took note that no evidence had been presented to pendens in the records of TCT Nos. 81735, 81736, and
establish that the testatrix was not of sound mind when 81737 in the name of Alfonso Precilla. And when said
the will was executed; that the fact that she had prepared official refused to do so, they applied to the probate court
an earlier will did not, prevent her from executing another (in Sp. Proc. No. 62618) for an order to compel the
one thereafter; that the fact that the 1956 will consisted of Register of Deeds to annotate a lis pendens notice in the
12 pages whereas the 1960 testament was contained in aforementioned titles contending that the matter of
one page does not render the latter invalid; that, the removal and appointment of the administratrix, involving
erasures and alterations in the instrument were TCT Nos. 81735, 81736, and 81737, was already before
insignificant to warrant rejection; that the inconsistencies the Supreme Court. Upon denial of this motion on 12
in the testimonies of the instrumental witnesses which November 1966, oppositors filed another mandamus
were noted by the oppositors are even indicative of their action, this time against the probate court and the
truthfulness. The probate court, also considering that Register of Deeds. The case was docketed and given due
petitioner had already shown capacity to administer the course in this Court as G.R. No. L-26864.
properties of the estate and that from the provisions of the
will she stands as the person most concerned and Foremost of the questions to be determined here
interested therein, appointed said petitioner regular concerns the correctness of the order allowing the
administratrix with a bond for P50,000.00. From this order probate of the 1960 will.
all the oppositors appealed, the case being docketed in
this Court as G.R. No. L-27200. The records of the probate proceeding fully establish the
fact that the testatrix, Gliceria A. del Rosario, during her
Then, on 13 September 1966, the probate court resolved lifetime, executed two wills: one on 9 June 1956
the oppositors motion of 14 December 1965 for the consisting of 12 pages and written in Spanish, a language
removal of the then special administratrix, as that she knew and spoke, witnessed by Messrs. Antonio
follows:jgc:chanrobles.com.ph Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and
"It would seem that the main purpose of the motion to another dated 29 December 1960, consisting of 1 page
remove the special administratrix and to appoint another and written in Tagalog, witnessed by Messrs. Vicente
one in her stead, is in order that an action may be filed Rosales, Francisco Decena, and Francisco Lopez and
against the special administratrix for the annulment of the acknowledged before notary public Remigio M. Tividad.
deed of sale executed by the decedent on January 10,
1961. Under existing documents, the properties sold Called to testify on the due execution of the 1960 will,
pursuant to the said deed of absolute sale no longer forms instrumental witnesses Decena, Lopez and Rosales
part of the estate. The alleged conflict of interest is uniformly declared that they were individually requested
accordingly not between different claimants of the same by Alfonso Precilla (the late husband of petitioner special
estate. If it is desired by the movants that an action be administratrix) to witness the execution of the last will of
filed by them to annul the aforesaid deed absolute sale, it Doa Gliceria A. del Rosario; that they arrived at the
is not necessary that the special administratrix be house of the old lady at No. 2074 Azcarraga, Manila, one
removed and that another one be appointed to file such after the other, in the afternoon of 29 December 1960; that
action. Such a course of action would only produce the testatrix at the time was apparently of clear and sound
confusion and difficulties in the settlement of the estate. mind, although she was being aided by Precilla when she
The movants may file the aforesaid proceedings, walked; 3 that the will, which was already prepared, was
first read "silently" by the testatrix herself before she that the right eye with my prescription of glasses had a
signed it; 4 that he three witnesses thereafter signed the vision of 2 over 60 (20/60) and for the left eye with her
will in the presence of the testatrix and the notary public correction 20 over 300 (20/300).
and of one another. There is also testimony that after the
testatrix and the witnesses to the will acknowledged the "Q In laymans language, Doctor, what is the significance
instrument to be their voluntary act and deed, the notary of that notation that the right had a degree of 20 over 60
public asked for their respective residence certificates (20/60)?
which were handed to him by Alfonso Precilla, clipped
together; 5 that after comparing them with the numbers "A It meant that eye at least would be able to recognize
already written on the will, the notary public filled in the objects or persons at a minimum distance of twenty feet.
blanks in the instrument with the date, 29 January 1960,
before he affixed his signature and seal thereto. 6 They "Q But would that grade enable the patient to read print?
also testified that on that occasion no pressure or
influence has been exerted by any person upon the "A Apparently that is only a record for distance vision, for
testatrix to execute the will. distance sight, not for near."cralaw virtua1aw library
Of course, the interest and active participation of Alfonso (pages 20-21, t.s.n., hearing of 23 March 1966)
Precilla in the signing of this 1960 will are evident from the
records. The will appeared to have been prepared by one The records also show that although Dr. Tamesis
who is not conversant with the spelling of Tagalog words, operated of the left eye of the decedent at the Lourdes
and it has been shown that Alfonso Precilla is a Cebuano Hospital on 8 August 1960; as of 23 August 1960, inspite
who speaks Tagalog with a Visayan accent. 7 The of the glasses her vision was only "counting fingers," 17
witnesses to the will, two of whom are fellow Visayans, 8 at five feet. The cross-examination of the doctor further
admitted their relationship or closeness to Precilla. 9 It elicited the following responses:jgc:chanrobles.com.ph
was Precilla who instructed them to go to the house of
Gliceria del Rosario on 29 December 1960 to witness an "Q After she was discharged from the hospital you
important document, 10 and who took their residence prescribed lenses for her, or glasses?
certificates from them a few days before the will was
signed. 11 Precilla had met the notary public and "A After her discharge from the hospital, she was coming
witnesses Rosales and Lopez at the door of the residence to my clinic for further examination and then sometime
of the old woman; he ushered them to the room at the later glasses were prescribed.
second floor where the signing of the document took
place; 12 then he fetched witness Decena from the latters x x x
haberdashery shop a few doors away and brought him to,
the house the testatrix. 13 And when the will was actually
executed Precilla was present. 14 "Q And the glasses prescribed by you enabled her to
read, Doctor?
The oppositors-appellants in the present case, however,
challenging the correctness of the probate courts ruling, "A As far as my record is concerned, with the glasses for
maintain that on 29 December 1960 the eyesight of the left eye which I prescribed the eye which I operated
Gliceria del Rosario was so poor and defective that she she could see only forms but not read. That is on the
could not have read the provisions of the will, contrary to left eye.
the testimonies of witnesses Decena, Lopez and Rosales.
"Q How about the right eye?
On this point, we find the declarations in court of Dr. Jesus
V. Tamesis very material and illuminating. Said "A The same, although the vision on the right eye is even
ophthalmologist, whose expertise was admitted by both better than the left eye." (pages 34. 85. t.s.n., hearing of
parties, testified, among other things, that when Doa 23 March 1966).
Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens), Then, confronted with a medical certificate (Exhibit H)
15 and that it was "above normal in pressure", denoting a issued by him on 29 November 1965 certifying that
possible glaucoma, a disease that leads to blindness 16 Gliceria del Rosario was provided with aphakic lenses
As to the conditions of her right eye, Dr. Tamesis and "had been under medical supervision up to 1963 with
declared:jgc:chanrobles.com.ph apparently good vision", the doctor had this to
say:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the
other documents Exhibits 3-B, 3-C and 3-D from which "Q When yon said that she had apparently good vision
you could inform the court as to the condition of the vision you mean that she was able to read?
of the patient as to the right eve?
"A No, not necessarily, only able to go around, take care
"A Under date of August 30, 1960, is the record of of herself and see. This I can tell you, this report was
refraction. that is setting of glass by myself which showed made on pure recollections and I recall she was using her
glasses although I recall also that we have to give her alleged testament, Exhibit "D", and that its admission to
medicines to improve her vision, some medicines to probate was erroneous and should be reversed.
improve her identification some more.
That Doa Gliceria should be able to greet her guests on
x x x her birthday, arrange flowers and attend to kitchen tasks
shortly prior to the alleged execution of the testament
Exhibit "D", as appears from the photographs, Exhibits "E"
"Q What about the vision in the right eve, was that to "E-1", in no way proves; that she was able to read a
corrected by the glasses? closely typed page, since the acts shown do not require
vision at close range. It must be remembered that with the
"A Yes, with the new prescription which I issued on 80 natural lenses removed, her eyes had lost the power of
August 1960. It is in the clinical record. adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the
"Q The vision in the right eye was corrected? signing of checks (Exhibits "G" to "G-3") by her indicative
of ability to see at normal reading distances. Writing or
"A Yes That is the vision for distant objects."cralaw signing of ones name, when sufficiently practiced,
virtua1aw library becomes automatic, so that one need only to have a
rough indication of the place where the signature is to be
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966). affixed in order to be able to write it. Indeed, a close
examination of the checks, amplified in the photograph,
The foregoing testimony of the ophthalmologist who Exhibit "O", et seq., reinforces the contention of
treated the deceased and, therefore, has first hand oppositors that the alleged testatrix could not see at
knowledge of the actual condition of her eyesight from normal reading distance: the signatures in the checks are
August, 1960 up to 1963, fully establish the fact that written far above the printed base, lines, and the names
notwithstanding the operation and removal of the cataract of the payees as well as the amounts written do not
in her left eye and her being fitted with aphakic lens (used appear to be in the handwriting of the alleged testatrix,
by cataract patients), her vision remained mainly for being in a much firmer and more fluid hand than hers.
viewing distant objects and not for reading print. Thus, the
conclusion is inescapable that with the condition of her Thus, for all intents and purpose of the rules on probate,
eyesight in August, 1960, and there is no evidence that it the deceased Gliceria del Rosario was, as appellant
had improved by 29 December 1960, Gliceria del Rosario oppositors contend, not unlike a blind testator, and the
was incapable f reading, and could not have read the due execution of her will would have required observance
provisions of the will supposedly signed by her on 29 of the provisions of Article 808 of the Civil Code.
December 1960. It is worth noting that the instrumental
witnesses stated that she read the instrument "silently" "ART. 808. If the testator is blind, the will shall be read to
(t.s.n., pages 164-165). which is a conclusion and not a him twice; once, by one of the subscribing witnesses, and
fact. again, by the notary public before whom the will is
acknowledged."cralaw virtua1aw library
Against the background of defective eyesight of the
alleged testatrix, the appearance of the will, Exhibit "D", The rationale behind the requirement of reading the will to
acquires striking significance. Upon its face, the the testator if he is blind or incapable of reading the will
testamentary provisions, the attestation clause and himself (as when he is illiterate), 18 is to make the
acknowledgment were crammed together into a single provisions thereof known to him, so that he may be able
sheet of paper, to much so that the words had to be to object if they are not in accordance with his wishes.
written very close on the top, bottom and two sides of the That the aim of the law is to insure that the dispositions of
paper, leaving no margin whatsoever; the word "and" had the will are properly communicated to and understood by
to be written by the symbol" &", apparently to save on the handicapped testator, thus making them truly
space. Plainly, the testament was not prepared with any reflective of his desire, is evidenced by the requirement
regard for the defective vision of Doa Gliceria. Further, that the will should be read to the latter, not only once but
typographical errors like "HULINH" for "HULING" (last), twice, by two different persons, and that the witnesses
"Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", have to act within the range of his (the testators) other
"instrumental" for "Instrumental", and "acknowledged" for senses. 19
"acknowledge, remained uncorrected, thereby indicating
that execution thereof must have been characterized by In connection with the will here in question, there is
haste. It is difficult to understand that so important a nothing in the records to show that the above requisites
document containing the final disposition of ones worldly have been complied with. Clearly, as already stated, the
possessions should be embodied in an informal and 1960 will sought to be probated suffers from infirmity that
untidily written instrument; or that the glaring spelling affects its due execution.
errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done We also find merit in the complaint of oppositors Lucio V.
so. The record is thus convincing that the supposed Garcia, Et Al., against the denial by the probate court of
testatrix could not have physically read or understood the their petition for the removal of Consuelo Gonzales Vda.
de Precilla as special administratrix of the estate of the justifying her removal from the administration of the
deceased Doa Gliceria (Petition, G.R. No. L-26615, estate.
Annex "B").
With respect to the orders of the court a quo denying (1)
The oppositors petition was based allegedly on the the oppositors motion to require the Hongkong and
existence in the special administratrix of an interest Shanghai Bank to report all withdrawals made against the
adverse to that of the estate. It was their contention that funds of the deceased after 2 September 1965 and (2) the
through fraud her husband had caused the deceased motion for annotation of a lis pendens notice on TCT Nos.
Gliceria del Rosario to execute a deed of sale, dated 10 81735, 81736 and 81737, the same are to be affirmed.
January 1961, by virtue of which the latter purportedly
conveyed unto said Alfonso D. Precilla, married to The probate court pointed out in its order of 22 October
Consuelo Gonzales y Narciso, the ownership of 3 parcels 1965 (Annex "H") that it could not have taken action on
of land and the improvements thereon, assessed at the complaint against the alleged withdrawals from the
P334,050.00, for the sum of P30,000.00. bank deposits of the deceased, because as of that time
the court had not yet been apprised that such deposits
In denying the petition, the probate court, in its order of 13 exist. Furthermore, as explained by the special
September 1966 (Annex "P", Petition) reasoned out that administratrix in her pleading of 30 October 1965, the
since the properties were already sold no longer form part withdrawals referred to by the oppositors could be those
of the estate. The conflict of interest would not be between covered by checks issued in the name of Gliceria del
the estate and third parties, but among the different Rosario during her lifetime but cleared only after her
claimants of said properties, in which case, according to death. That explanation, which not only appears plausible
the court, the participation of the special administratrix in but has not been rebutted by the petitioners-oppositors,
the action for annulment that may be brought would not negates any charge of grave abuse in connection with the
be necessary. issuance of the order here in question.
The error in this line of reasoning lies in the fact that what On the matter of lis pendens (G.R. No. L-26864), the
was being questioned was precisely the validity of the provisions of the Rules of Court are clear: notice of the
conveyance or sale of the properties. In short, if proper, pendency of an action may be recorded in the office of the
the action for annulment would have to be undertaken on register of deeds of the province in which the property is
behalf of the estate by the special administratrix, affecting situated, if the action affects "the title or the right of
as it does the property or rights of the deceased. 20 For possession of (such) real property." 23 In the case at bar,
the rule is that only where there is no special proceeding the pending action which oppositors seek to annotate in
for the settlement of the estate of the deceased may the the records of TCT Nos. 81735, 81736, and 81737 is the
legal heirs commence an action arising out of a right mandamus proceeding filed in this Court (G.R. No. L-
belonging to their ancestor. 21 26615). As previously discussed in this opinion, however,
that case is concerned merely with the correctness of the
There is no doubt that to settle the question of the due denial by the probate court of the motion for the removal
execution and validity of the deed of sale, an ordinary and of Consuelo Gonzales Vda. de Precilla as special
separate action would have to be instituted, the matter not administratrix of the estate of the late Gliceria del Rosario.
falling within the competence of the probate court. 22 In short, the issue in controversy there is simply the
Considering the facts then before it, i.e., the alleged deed fitness or unfitness of said special administratrix to
of sale having been executed by Gliceria del Rosario on continue holding the trust; it does not involve or affect at
10 January 1961, when she was already practically blind; all the title to, or possession of, the properties covered by
and that the consideration of P30,000.00 seems to be said TCT Nos. 81735, 81736 and 81737. Clearly, the
unconscionably small for properties with a total assessed pendency of such case (L-26615) is not an action that can
value of P334,050.00, there was likelihood that a case for properly be annotated in the record of the titles to the
annulment might indeed be filed against the estate or properties.
heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be FOR THE FOREGOING REASONS, the order of the
expected to sue herself in an action to recover property court below allowing to probate the alleged 1960 will of
that may turn out to belong to the estate. 22 Not only this, Gliceria A. del Rosario is hereby reversed and set aside.
but the conduct of the special administratrix in securing The petition in G.R. No. L-26615 being meritorious, the
new copies of the owners duplicates of TCT Nos. 66201, appealed order is set aside and the court below is ordered
66202, and 66204, without the courts knowledge or to remove the administratrix, Consuelo Gonzales Vda. de
authority, and on the pretext that she needed them in the Precilla, and appoint one of the heirs intestate of the
preparation of the inventory of the estate, when she must deceased Doa Gliceria Avelino del Rosario as special
have already known by then that the properties covered administrator for the purpose of instituting action on behalf
therein were already "conveyed" to her husband by the of her estate to recover the properties allegedly sold by
deceased, being the latters successor, and having the her to the late Alfonso D. Precilla. And in Case G.R. No.
contract bind the land through issuance of new titles in her L-26864, petition is dismissed. No costs.
husbands name cannot but expose her to the charge of
unfitness or unsuitableness to discharge the trust,
G.R. No. 74695 September 14, 1993 not executed and attested as required by law; that the
testator was insane or otherwise mentally incapacitated
In the Matter of the Probate of the Last Will and to make a will at the time of its execution due to senility
Testament of the Deceased Brigido Alvarado, CESAR and old age; that the will was executed under duress, or
ALVARADO, petitioner, vs. HON. RAMON G. influence of fear and threats; that it was procured by
GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO undue and improper pressure and influence on the part of
QUETULIO LOSA and HON. LEONOR INES LUCIANO, the beneficiary who stands to get the lion's share of the
Associate Justices, Intermediate Appellate Court, testator's estate; and lastly, that the signature of the
First Division (Civil Cases), and BAYANI MA. testator was procured by fraud or trick.
RINO, respondents.
When the oppositor (petitioner) failed to substantiate the
BELLOSILLO, J.: grounds relied upon in the Opposition, a Probate Order
was issued on 27 June 1983 from which an appeal was
Before us is an appeal from the Decision dated 11 April made to respondent court. The main thrust of the appeal
was that the deceased was blind within the meaning of
19861 of the First Civil Cases Division of the then
the law at the time his "Huling Habilin" and the codicil
Intermediate Appellate Court, now Court of Appeals,
attached thereto was executed; that since the reading
which affirmed the Order dated 27 June 19832 of the
required by Art. 808 of the Civil Code was admittedly not
Regional Trial Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament3 with codicil4 of the late complied with, probate of the deceased's last will and
Brigido Alvarado. codicil should have been denied.
On the other hand, the Court of Appeals, contrary to the Private respondent however insists that there was
medical testimony, held that the testator could still read substantial compliance and that the single reading
on the day the will and the codicil were executed but suffices for purposes of the law. On the other hand,
chose not to do so because of "poor eyesight."9 Since the petitioner maintains that the only valid compliance or
testator was still capable of reading at that time, the compliance to the letter and since it is admitted that
court a quo concluded that Art. 808 need not be complied neither the notary public nor an instrumental witness read
with. the contents of the will and codicil to Brigido, probate of
the latter's will and codicil should have been disallowed.
We agree with petitioner in this respect.
We sustain private respondent's stand and necessarily,
Regardless of respondent's staunch contention that the the petition must be denied.
testator was still capable of reading at the time his will and
codicil were prepared, the fact remains and this was This Court has held in a number of occasions that
testified to by his witnesses, that Brigido did not do so substantial compliance is acceptable where the purpose
because of his "poor," 10 "defective," 11 or of the law has been satisfied, the reason being that the
"blurred"12 vision making it necessary for private solemnities surrounding the execution of wills are
respondent to do the actual reading for him. intended to protect the testator from all kinds of fraud and
trickery but are never intended to be so rigid and inflexible
The following pronouncement in Garcia as to destroy the testamentary privilege. 14
vs. Vasquez 13 provides an insight into the scope of the
term "blindness" as used in Art. 808, to wit: In the case at bar, private respondent read the testator's
will and codicil aloud in the presence of the testator, his
The rationale behind the requirement of reading the three instrumental witnesses, and the notary public. Prior
will to the testator if he is blind or incapable of reading and subsequent thereto, the testator affirmed, upon being
the will himself (as when he is illiterate), is to make asked, that the contents read corresponded with his
the provisions thereof known to him, so that he may instructions. Only then did the signing and
be able to object if they are not in accordance with his acknowledgement take place. There is no evidence, and
wishes . . . petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and
Clear from the foregoing is that Art. 808 applies not only communicated to the testator. On the contrary, with
to blind testators but also to those who, for one reason or respect to the "Huling Habilin," the day of the execution
another, are "incapable of reading the(ir) will(s)." Since was not the first time that Brigido had affirmed the truth
Brigido Alvarado was incapable of reading the final drafts and authenticity of the contents of the draft. The
of his will and codicil on the separate occasions of their uncontradicted testimony of Atty. Rino is that Brigido
execution due to his "poor," "defective," or "blurred" Alvarado already acknowledged that the will was drafted
vision, there can be no other course for us but to conclude in accordance with his expressed wishes even prior to 5
that Brigido Alvarado comes within the scope of the term November 1977 when Atty. Rino went to the testator's
"blind" as it is used in Art. 808. Unless the contents were residence precisely for the purpose of securing his
read to him, he had no way of ascertaining whether or not conformity to the draft. 15
the lawyer who drafted the will and codicil did so
confortably with his instructions. Hence, to consider his Moreover, it was not only Atty. Rino who read the
will as validly executed and entitled to probate, it is documents on
essential that we ascertain whether Art. 808 had been 5 November and 29 December 1977. The notary public
complied with. and the three instrumental witnesses likewise read the will
and codicil, albeit silently. Afterwards, Atty. Nonia de la
Article 808 requires that in case of testators like Brigido Pena (the notary public) and Dr. Crescente O. Evidente
Alvarado, the will shall be read twice; once, by one of the (one of the three instrumental witnesses and the testator's
instrumental witnesses and, again, by the notary public physician) asked the testator whether the contents of the
before whom the will was acknowledged. The purpose is document 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
testator's will. 17
SO ORDERED.
G.R. No. 103554 May 28, 1993 TEODORO CANEDA, with Special Proceeding No. 3899-R in Branch II of the
LORENZA CANEDA, TERESA CANEDA, JUAN Court of First Instance of Cebu and opposed thereat the
CABALLERO, AUREA CABALLERO, OSCAR probate of the Testator's will and the appointment of a
LAROSA, HELEN CABALLERO, SANTOS special administrator for his estate.5
CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO Benoni Cabrera died on February 8, 1982 hence the
ABAPO, represented herein by his Attorney-in-Fact, probate court, now known as Branch XV of the Regional
ARMSTICIA * ABAPO VELANO, and CONSESO Trial Court of Cebu, appointed William Cabrera as special
CANEDA, represented herein by his heirs, JESUS administrator on June 21, 1983. Thereafter, on July 20,
CANEDA, NATIVIDAD CANEDA and ARTURO 1983, it issued an order for the return of the records of
CANEDA, petitioners, vs. HON. COURT OF APPEALS Special Proceeding No. 3965-R to the archives since the
and WILLIAM CABRERA, as Special Administrator of testate proceeding for the probate of the will had to be
the Estate of Mateo Caballero, respondents. heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the
REGALADO, J.: Regional Trial Court of Cebu where it remained until the
conclusion of the probate proceedings.6
Presented for resolution by this Court in the present
petition for review on certiorari is the issue of whether or In the course of the hearing in Special Proceeding No.
not the attestation clause contained in the last will and 3899-R, herein petitioners appeared as oppositors and
testament of the late Mateo Caballero complies with the objected to the allowance of the testator's will on the
requirements of Article 805, in relation to Article 809, of ground that on the alleged date of its execution, the
the Civil Code. testator was already in the poor state of health such that
he could not have possibly executed the same.
The records show that on December 5, 1978, Mateo Petitioners likewise reiterated the issue as to the
Caballero, a widower without any children and already in genuineness of the signature of the testator therein.7
the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three On the other hand, one of the attesting witnesses,
attesting witnesses, namely, Cipriano Labuca, Gregorio Cipriano Labuca, and the notary public Atty. Filoteo
Cabando and Flaviano Toregosa. The said testator was Manigos, testified that the testator executed the will in
duly assisted by his lawyer, Atty. Emilio Lumontad, and a question in their presence while he was of sound and
notary public, Atty. Filoteo Manigos, in the preparation of disposing mind and that, contrary to the assertions of the
that last will.1 It was declared therein, among other things, oppositors, Mateo Caballero was in good health and was
that the testator was leaving by way of legacies and not unduly influenced in any way in the execution of his
devises his real and personal properties to Presentacion will. Labuca also testified that he and the other witnesses
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito attested and signed the will in the presence of the testator
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all and of each other. The other two attesting witnesses were
of whom do not appear to be related to the testator.2 not presented in the probate hearing as the had died by
then.8
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding On April 5, 1988, the probate court rendered a decision
No. 3899-R before Branch II of the then Court of First declaring the will in question as the last will and testament
Instance of Cebu seeking the probate of his last will and of the late Mateo Caballero, on the ratiocination that:
testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent . . . The self-serving testimony of the two witnesses of
scheduled hearings were postponed for one reason to the oppositors cannot overcome the positive
another. On May 29, 1980, the testator passed away testimonies of Atty. Filoteo Manigos and Cipriano
before his petition could finally be heard by the probate Labuca who clearly told the Court that indeed Mateo
court.3 On February 25, 1981, Benoni Cabrera, on of the Caballero executed the Last Will and Testament now
legatees named in the will, sough his appointment as marked Exhibit "C" on December 5, 1978. Moreover,
special administrator of the testator's estate, the the fact that it was Mateo Caballero who initiated the
estimated value of which was P24,000.00, and he was so probate of his Will during his lifetime when he caused
appointed by the probate court in its order of March 6, the filing of the original petition now marked Exhibit
1981.4 "D" clearly underscores the fact that this was indeed
his Last Will. At the start, counsel for the oppositors
Thereafter, herein petitioners, claiming to be nephews manifested that he would want the signature of Mateo
and nieces of the testator, instituted a second petition, Caballero in Exhibit "C" examined by a handwriting
entitled "In the Matter of the Intestate Estate of Mateo expert of the NBI but it would seem that despite their
Caballero" and docketed as Special Proceeding No. avowal and intention for the examination of this
3965-R, before Branch IX of the aforesaid Court of First signature of Mateo Caballero in Exhibit "C", nothing
Instance of Cebu. On October 18, 1982, herein petitioners came out of it because they abandoned the idea and
had their said petition intestate proceeding consolidated
instead presented Aurea Caballero and Helen that raised before respondent court, the validity of the
Caballero Campo as witnesses for the oppositors. attestation clause in the last will of Mateo Caballero.
All told, it is the finding of this Court that Exhibit "C" is We find the present petition to be meritorious, as we shall
the Last Will and Testament of Mateo Caballero and shortly hereafter, after some prefatory observations which
that it was executed in accordance with all the we feel should be made in aid of the rationale for our
requisites of the law.9 resolution of the controversy.
Undaunted by the said judgment of the probate court, 1. A will has been defined as a species of conveyance
petitioners elevated the case in the Court of Appeals in whereby a person is permitted, with the formalities
CA-G.R. CV No. 19669. They asserted therein that the prescribed by law, to control to a certain degree the
will in question is null and void for the reason that its disposition of his estate after his death. 13 Under the Civil
attestation clause is fatally defective since it fails to Code, there are two kinds of wills which a testator may
specifically state that the instrumental witnesses to the will execute.14 the first kind is the ordinary or attested will, the
witnessed the testator signing the will in their presence execution of which is governed by Articles 804 to 809 of
and that they also signed the will and all the pages thereof the Code. Article 805 requires that:
in the presence of the testator and of one another.
Art. 805. Every will, other than a holographic will, must
On October 15, 1991, respondent court promulgated its be subscribed at the end thereof by the testator himself
decision 10 affirming that of the trial court, and ruling that or by the testator's name written by some other person
the attestation clause in the last will of Mateo Caballero in his presence, and by his express direction, and
substantially complies with Article 805 of the Civil Code, attested and subscribed by three or more credible
thus: witnesses in the presence of the testator and of one
another.
The question therefore is whether the attestation
clause in question may be considered as having The testator or the person requested by him to write
substantialy complied with the requirements of Art. his name and the instrumental witnesses of the will,
805 of the Civil Code. What appears in the attestation shall also sign, as aforesaid, each and every page
clause which the oppositors claim to be defective is thereof, except the last, on the left margin, and all the
"we do certify that the testament was read by him and pages shall be numbered correlatively in letters placed
the attestator, Mateo Caballero, has published unto on the upper part of each page.
us the foregoing will consisting of THREE PAGES,
including the acknowledgment, each page numbered The attestation should state the number of pages used
correlatively in letters of the upper part of each page, upon which the will is written, and the fact that the
as his Last Will and Testament, and he has signed testator signed the will and every page thereof, or
the same and every page thereof, on the spaces caused some other person to write his name, under his
provided for his signature and on the left hand margin express direction, in the presence of the instrumental
in the presence of the said testator and in the witnesses, and that the latter witnessed and signed the
presence of each and all of us (emphasis supplied). will and all the pages thereof in the presence of the
testator and of one another.
To our thinking, this is sufficient compliance and no
evidence need be presented to indicate the meaning If the attestation clause is in a language not known to
that the said will was signed by the testator and by the witness, it shall be interpreted to them.
them (the witnesses) in the presence of all of them
and of one another. Or as the language of the law In addition, the ordinary will must be acknowledged before
would have it that the testator signed the will "in the
a notary public by a testator and the attesting
presence of the instrumental witnesses, and that the
witness. 15hence it is likewise known as notarial will.
latter witnessed and signed the will and all the pages
Where the attestator is deaf or deaf-mute, Article 807
thereof in the presence of the testator and of one requires that he must personally read the will, if able to do
another." If not completely or ideally perfect in so. Otherwise, he should designate two persons who
accordance with the wordings of Art. 805 but (sic) the
would read the will and communicate its contents to him
phrase as formulated is in substantial compliance
in a practicable manner. On the other hand, if the testator
with the requirement of the law." 11
is blind, the will should be read to him twice; once, by
anyone of the witnesses thereto, and then again, by the
Petitioners moved for the reconsideration of the said notary public before whom it is acknowledged. 16
ruling of respondent court, but the same was denied in the
latter's resolution of January 14, 1992, 12 hence this
The other kind of will is the holographic will, which Article
appeal now before us. Petitioners assert that respondent
810 defines as one that is entirely written, dated, and
court has ruled upon said issue in a manner not in accord
signed by the testator himself. This kind of will, unlike the
with the law and settled jurisprudence on the matter and ordinary type, requires no attestation by witnesses. A
are now questioning once more, on the same ground as
common requirement in both kinds of will is that they In its report, the Code Commission commented on the
should be in writing and must have been executed in a reasons of the law for requiring the formalities to be
language or dialect known to the testator. 17 followed in the execution of wills, in the following manner:
However, in the case of an ordinary or attested will, its The underlying and fundamental objectives
attestation clause need not be written in a language or permeating the provisions on the law on wills in this
dialect known to the testator since it does not form part of Project consists in the liberalization of the manner of
the testamentary disposition. Furthermore, the language their execution with the end in view of giving the
used in the attestation clause likewise need not even be testator more freedom in expressing his last wishes,
known to the attesting witnesses. 18 The last paragraph of but with sufficient safeguards and restrictions to
Article 805 merely requires that, in such a case, the prevent the commission of fraud and the exercise of
attestation clause shall be interpreted to said witnesses. undue and improper pressure and influence upon the
testator.
An attestation clause refers to that part of an ordinary will
whereby the attesting witnesses certify that the instrument This objective is in accord with the modern tendency
has been executed before them and to the manner of the with respect to the formalities in the execution of wills.
execution the same. 19 It is a separate memorandum or . . .29
record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to 2. An examination of the last will and testament of Mateo
the fact that compliance with the essential formalities Caballero shows that it is comprised of three sheets all of
required by law has been observed. 20 It is made for the which have been numbered correlatively, with the left
purpose of preserving in a permanent form a record of the margin of each page thereof bearing the respective
facts that attended the execution of a particular will, so signatures of the testator and the three attesting
that in case of failure of the memory of the attesting witnesses. The part of the will containing the testamentary
witnesses, or other casualty, such facts may still be dispositions is expressed in the Cebuano-Visayan dialect
proved. 21 and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is
Under the third paragraph of Article 805, such a clause, recited in the English language and is likewise signed at
the complete lack of which would result in the invalidity of the end thereof by the three attesting witnesses
the will, 22 should state (1) the number of the pages hereto.30 Since it is the proverbial bone of contention, we
used upon which the will is written; (2) that the testator reproduce it again for facility of reference:
signed, or expressly caused another to sign, the will and
every page thereof in the presence of the attesting We, the undersigned attesting Witnesses, whose
witnesses; and (3) that the attesting witnesses witnessed Residences and postal addresses appear on the
the signing by the testator of the will and all its Opposite of our respective names, we do hereby
pages, and that saidwitnesses also signed the will and certify that the Testament was read by him and the
every page thereof in the presence of the testator and of testator, MATEO CABALLERO; has published unto
one another. us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page numbered
The purpose of the law in requiring the clause to state the correlatively in the letters on the upper part of each
number of pages on which the will is written is to page, as his Last Will and Testament and he has the
safeguard against possible interpolation or omission of same and every page thereof, on the spaces provided
one or some of its pages and to prevent any increase or for his signature and on the left hand margin, in the
decrease in the pages;23 whereas the subscription of the presence of the said testator and in the presence of
signature of the testator and the attesting witnesses is each and all of us.
made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument It will be noted that Article 805 requires that the witness
executed by the testator and attested to by the should both attest and subscribe to the will in the
witnesses.24 presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act
Further, by attesting and subscribing to the will, the of senses, while subscription is the act of the hand. The
witnesses thereby declare the due execution of the will as former is mental, the latter mechanical, and to attest a will
embodied in the attestation clause. 25 The attestation is to know that it was published as such, and to certify the
clause, therefore, provide strong legal guaranties for the facts required to constitute an actual and legal publication;
due execution of a will and to insure the authenticity but to subscribe a paper published as a will is only to write
thereof.26 As it appertains only to the witnesses and not to on the same paper the names of the witnesses, for the
the testator, it need be signed only by them.27 Where it is sole purpose of identification.31
left unsigned, it would result in the invalidation of the will
as it would be possible and easy to add the clause on a In Taboada vs. Rizal,32 we clarified that attestation
subsequent occasion in the absence of the testator and consists in witnessing the testator's execution of the will
its witnesses.28 in order to see and take note mentally that those things
are done which the statute requires for the execution of a Art. 809. In the absence of bad faith, forgery, or fraud,
will and that the signature of the testator exists as a fact. or undue and improper pressure and influence,
On the other hand, subscription is the signing of the defects and imperfections in the form of attestation or
witnesses' names upon the same paper for the purpose in the language used therein shall not render the will
of identification of such paper as the will which was invalid if it is not proved that the will was in fact
executed by the testator. As it involves a mental act, there executed and attested in substantial compliance with
would be no means, therefore, of ascertaining by a all the requirements of article 805" (Emphasis
physical examination of the will whether the witnesses supplied.)
had indeed signed in the presence of the testator and of
each other unless this is substantially expressed in the While it may be true that the attestation clause is indeed
attestation. subscribed at the end thereof and at the left margin of
each page by the three attesting witnesses, it certainly
It is contended by petitioners that the aforequoted cannot be conclusively inferred therefrom that the said
attestation clause, in contravention of the express witness affixed their respective signatures in the presence
requirements of the third paragraph of Article 805 of the of the testator and of each other since, as petitioners
Civil Code for attestation clauses, fails to specifically state correctly observed, the presence of said signatures only
the fact that the attesting witnesses the testator sign the establishes the fact that it was indeed signed, but it does
will and all its pages in their presence and that they, the not prove that the attesting witnesses did subscribe to the
witnesses, likewise signed the will and every page thereof will in the presence of the testator and of each other. The
in the presence of the testator and of each other. We execution of a will is supposed to be one act so that where
agree. the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be
What is fairly apparent upon a careful reading of the stamped with the imprimatur of effectivity.33
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its We believe that the further comment of former Justice
pages in the presence of the three attesting witnesses J.B.L. Reyes34 regarding Article 809, wherein he urged
and states as well the number of pages that were used, caution in the application of the substantial compliance
the same does not expressly state therein the rule therein, is correct and should be applied in the case
circumstance that said witnesses subscribed their under consideration, as well as to future cases with similar
respective signatures to the will in the presence of the questions:
testator and of each other.
. . . The rule must be limited to disregarding those
The phrase "and he has signed the same and every page defects that can be supplied by an examination of the
thereof, on the spaces provided for his signature and on will itself: whether all the pages are consecutively
the left hand margin," obviously refers to the testator and numbered; whether the signatures appear in each
not the instrumental witnesses as it is immediately and every page; whether the subscribing witnesses
preceded by the words "as his Last Will and Testament." are three or the will was notarized. All theses are facts
On the other hand, although the words "in the presence that the will itself can reveal, and defects or even
of the testator and in the presence of each and all of us" omissions concerning them in the attestation clause
may, at first blush, appear to likewise signify and refer to can be safely disregarded. But the total number of
the witnesses, it must, however, be interpreted as pages, and whether all persons required to sign did
referring only to the testator signing in the presence of the so in the presence of each other must substantially
witnesses since said phrase immediately follows the appear in the attestation clause, being the only check
words "he has signed the same and every page thereof, against perjury in the probate proceedings.
on the spaces provided for his signature and on the left (Emphasis ours.)
hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses 3. We stress once more that under Article 809, the defects
signed the will and every page thereof in the presence of and imperfections must only be with respect to the form
the testator and of one another. of the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid
It is our considered view that the absence of that should it be proved that the will was really executed and
statement required by law is a fatal defect or imperfection attested in compliance with Article 805. In this regard,
which must necessarily result in the disallowance of the however, the manner of proving the due execution and
will that is here sought to be admitted to probate. attestation has been held to be limited to merely an
Petitioners are correct in pointing out that the aforestated examination of the will itself without resorting to
defect in the attestation clause obviously cannot be evidence aliunde, whether oral or written.
characterized as merely involving the form of the will or
the language used therein which would warrant the The foregoing considerations do not apply where the
application of the substantial compliance rule, as attestation clause totally omits the fact that the attesting
contemplated in the pertinent provision thereon in the Civil witnesses signed each and every page of the will in the
Code, to wit: presence of the testator and of each other.35 In such a
situation, the defect is not only in the form or language of will, hence when an interpretation already given assures
the attestation clause but the total absence of a specific such ends, any other interpretation whatsoever that adds
element required by Article 805 to be specifically stated in nothing but demands more requisites entirely
the attestation clause of a will. That is precisely the defect unnecessary, useless and frustrative of the testator's last
complained of in the present case since there is no will, must be disregarded. The subsequent cases of Avera
plausible way by which we can read into the questioned vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
attestation clause statement, or an implication thereof, 39 40
Abella, Pecson vs. Coronel, Fernandez vs. Vergel de
that the attesting witness did actually bear witness to the Dios, et al.,41and Nayve vs. Mojal, et al.42 all adhered to
signing by the testator of the will and all of its pages and this position.
that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of The other view which advocated the rule that statutes
one another. which prescribe the formalities that should be observed in
the execution of wills are mandatory in nature and are to
Furthermore, the rule on substantial compliance in Article be strictly construed was followed in the subsequent
809 cannot be revoked or relied on by respondents since cases of In the Matter of the Estate of Saguinsin,43 In re
it presupposes that the defects in the attestation clause Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of
can be cured or supplied by the text of the will or a Neumark, 46and Sano vs. Quintana.47
consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause Gumban vs. Gorecho, et al.,48 provided the Court with the
or from which it may necessarily be gleaned or clearly occasion to clarify the seemingly conflicting decisions in
inferred that the acts not stated in the omitted textual the aforementioned cases. In said case of Gumban, the
requirements were actually complied within the execution attestation clause had failed to state that the witnesses
of the will. In other words, defects must be remedied by signed the will and each and every page thereof on the
intrinsic evidence supplied by the will itself. left margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:
In the case at bar, contrarily, proof of the acts required to
have been performed by the attesting witnesses can be In support of their argument on the assignment of
supplied by only extrinsic evidence thereof, since an error above-mentioned, appellants rely on a series of
overall appreciation of the contents of the will yields no cases of this court beginning with (I)n the Matter of
basis whatsoever from with such facts may be plausibly the (E)state of Saguinsin ([1920], 41 Phil., 875),
deduced. What private respondent insists on are the continuing with In re Will of Andrada [1921], 42 Phil.,
testimonies of his witnesses alleging that they saw the 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil.,
compliance with such requirements by the instrumental 405), and In re Estate of Neumark ([1923], 46 Phil.,
witnesses, oblivious of the fact that he is thereby resorting 841), and ending with Sano vs. Quintana ([1925], 48
to extrinsic evidence to prove the same and would Phil., 506). Appellee counters with the citation of a
accordingly be doing by the indirection what in law he series of cases beginning with Abangan vs.
cannot do directly. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
4. Prior to the advent of the Civil Code on August 30, and Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
1950, there was a divergence of views as to which 922), and culminating in Nayve vs. Mojal and
manner of interpretation should be followed in resolving Aguilar ([1924], 47 Phil., 152). In its last analysis, our
issues centering on compliance with the legal formalities task is to contrast and, if possible, conciliate the last
required in the execution of wills. The formal requirements two decisions cited by opposing counsel, namely,
were at that time embodied primarily in Section 618 of Act those of Sano vs. Quintana, supra, and Nayve vs.
No. 190, the Code of Civil Procedure. Said section was Mojal and Aguilar, supra.
later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the In the case of Sano vs. Quintana, supra, it was
amendment thereto were practically reproduced and decided that an attestation clause which does not
adopted in the Civil Code. recite that the witnesses signed the will and each and
every page thereof on the left margin in the presence
One view advance the liberal or substantial compliance of the testator is defective, and such a defect annuls
rule. This was first laid down in the case of Abangan vs. the will. The case of Uy Coque vs. Sioca, supra, was
Abangan,36 where it was held that the object of the cited, but the case of Nayve vs. Mojal and
solemnities surrounding the execution of wills is to close Aguilar, supra, was not mentioned. In contrast, is the
the door against bad faith and fraud, to avoid substitution decision in Nayve vs. Mojal and Aguilar, supra,
of wills and testaments and to guarantee their truth and wherein it was held that the attestation clause must
authenticity. Therefore, the laws on this subject should be estate the fact that the testator and the witnesses
interpreted in such a way as to attain these primordial reciprocally saw the signing of the will, for such an act
ends. Nonetheless, it was also emphasized that one must cannot be proved by the mere exhibition of the will, if
not lose sight of the fact that it is not the object of the law it is not stated therein. It was also held that the fact
to restrain and curtail the exercise of the right to make a that the testator and the witnesses signed each and
every page of the will can be proved also by the mere threshed out therein. The cases of Quinto vs.
examination of the signatures appearing on the Morata,49Rodriguez vs. Alcala,50 Enchevarria vs.
document itself, and the omission to state such Sarmiento, and Testate Estate of Toray52 went the way
51
evident facts does not invalidate the will. of the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De
It is a habit of courts to reaffirm or distinguish previous Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs.
cases; seldom do they admit inconsistency in Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
doctrine. Yet here, unless aided impossible to Martir,60 Alcala vs. De Villa,61 Sabado vs.
reconcile the Mojal and Quintana decisions. They are Fernandez, Mendoza vs. Pilapil, 63 and Lopez vs.
62
fundamentally at variance. If we rely on one, we Liboro,64 veered away from the strict interpretation rule
affirm. If we rely on the other, we reverse. and established a trend toward an application of the
liberal view.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first The Code Commission, cognizant of such a conflicting
place, the Mojal, decision was concurred in by only welter of views and of the undeniable inclination towards
four members of the court, less than a majority, with a liberal construction, recommended the codification of
two strong dissenting opinions; the Quintana decision the substantial compliance rule, as it believed this rule to
was concurred in by seven members of the court, a be in accord with the modern tendency to give a liberal
clear majority, with one formal dissent. In the second approach to the interpretation of wills. Said rule thus
place, the Mojal decision was promulgated in became what is now Article 809 of the Civil Code, with this
December, 1924, while the Quintana decision was explanation of the Code Commission:
promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in The present law provides for only one form of executing
the third place, the Quintana decision is believed a will, and that is, in accordance with the formalities
more nearly to conform to the applicable provisions of prescribed by Section 618 of the Code of Civil
the law. Procedure as amended by Act No. 2645. The Supreme
Court of the Philippines had previously upheld the strict
The right to dispose of property by will is governed compliance with the legal formalities and had even said
entirely by statute. The law of the case is here found that the provisions of Section 618 of the Code of Civil
in section 61 of the Code of Civil Procedure as Procedure, as amended regarding the contents of the
amended by Act No. 2645, and in section 634 of the attestation clause were mandatory, and non-
same Code, as unamended. It is in part provided in compliance therewith invalidated the will (Uy Coque vs.
section 61, as amended that "No will . . . shall be Sioca, 43 Phil. 405). These decisions necessarily
valid . . . unless . . .." It is further provided in the same restrained the freedom of the testator in disposing of his
section that "The attestation shall state the number of property.
sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every However, in recent years the Supreme Court changed
page thereof, or caused some other person to write its attitude and has become more liberal in the
his name, under his express direction, in the interpretation of the formalities in the execution of wills.
presence of three witnesses, and the latter witnessed This liberal view is enunciated in the cases of Rodriguez
and signed the will and all pages thereof in the vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
presence of the testator and of each other." Codal Leynez, G.R. No. 46097, October 18, 1939; Martir vs.
section 634 provides that "The will shall be disallowed Martir, G.R. No. 46995, June 21, 1940; and Alcala vs.
in either of the following case: 1. If not executed Villa, G.R. No. 47351, April 18, 1941.
and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but In the above mentioned decisions of our Supreme
cautiously goes further and makes use of the Court, it has practically gone back to the original
negative, to enforce legislative intention. It is not provisions of Section 618 of the Code of Civil Procedure
within the province of the courts to disregard the before its amendment by Act No. 2645 in the year 1916.
legislative purpose so emphatically and clearly To turn this attitude into a legislative declaration and to
expressed. attain the main objective of the proposed Code in the
liberalization of the manner of executing wills, article
We adopt and reaffirm the decision in the case 829 of the Project is recommended, which reads:
of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case of Nayve "Art. 829. In the absence of bad faith, forgery, or
vs. Mojal and Aguilar, supra. (Emphases in the fraud, or undue and improper pressure and influence,
original text). defects and imperfections in the form of attestation or
in the language used therein shall not render the will
But after the Gumban clarificatory pronouncement, there invalid if it is proved that the will was in fact executed
were decisions of the Court that once more appeared to and attested in substantial compliance with all the
revive the seeming diversity of views that was earlier requirements of article 829."65
The so-called liberal rule, the Court said in Gil vs.
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."
SO ORDERED.
G.R. No. L-51546 January 28, 1980 - JOSE ANTONIO We hold that the lower court manifestly erred in declaring
GABUCAN, petitioner-appellant, vs.HON. JUDGE LUIS that, because no documentary stamp was affixed to the
D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA will, there was "no will and testament to probate" and,
G. ENCLONAR, respondents-appellees. AQUINO, J.: consequently, the alleged "action must of necessity be
dismissed".
This case is about the dismissal of a petition for the
probate of a notarial will on the ground that it does not What the probate court should have done was to require
bear a thirty-centavo documentary stamp. the petitioner or proponent to affix the requisite thirty-
centavo documentary stamp to the notarial
The Court of First Instance of Camiguin in its "decision" of acknowledgment of the will which is the taxable portion of
December 28, 1977 in Special Proceeding No. 41 for the that document.
probate of the will of the late Rogaciano Gabucan,
dismissed the proceeding (erroneously characterizes as That procedure may be implied from the provision of
an "action") section 238 that the non-admissibility of the document,
which does not bear the requisite documentary stamp,
The proceeding was dismissed because the requisite subsists only "until the requisite stamp or stamps shall
documentary stamp was not affixed to the notarial have been affixed thereto and cancelled."
acknowledgment in the will and, hence, according to
respondent Judge, it was not admissible in evidence, Thus, it was held that the documentary stamp may be
citing section 238 of the Tax Code, now section 250 of the affixed at the time the taxable document is presented in
1977 Tax Code, which reads: evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the
promissory note does not bear a documentary stamp, the
SEC. 238. Effect of failure to stamp taxable court should have allowed plaintiff's tender of a stamp to
document. An instrument, document, or paper supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
which is required by law to be stamped and which has 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil.
been signed, issued, accepted, or transferred without 637, that the lack of the documentary stamp on a
being duly stamped, shall not be recorded, nor shall it document does not invalidate such document. See Cia.
or any copy thereof or any record of transfer of the General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2
same be admitted or used in evidence in any court and Delgado and Figueroa vs. Amenabar 16 Phil. 403,
until the requisite stamp or stamps shall have been 405-6.)
affixed thereto and cancelled.
WHEREFORE, the lower court's dismissal of the petition
No notary public or other officer authorized to for probate is reversed and set aside. It is directed to
administer oaths shall add his jurat or decide the case on the merits in the light of the parties'
acknowledgment to any document subject to evidence. No costs.
documentary stamp tax unless the proper
documentary stamps are affixed thereto and SO ORDERED.
cancelled.