A.M. No.

2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,

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

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face
is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged
will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of Appeals which
reveal the following tangled strands of human relationship:

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

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

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

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

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

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

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

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

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On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the executrix in her
will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the Court of First
Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's alleged will. The case was assigned to Judge
Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S. Yuipco, to hear the
evidence. The transcripts of the stenographic notes taken at the hearing before the deputy clerk of court are not in the
record.

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

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

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

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

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

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

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

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

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

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not Marcelina's
granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's sonbut
merely an anak-anakan who was not legally adopted (p. 143, Record).

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Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters of
administration because of the non-appearance of her counsel at the hearing. She moved for the reconsideration of that
order.

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

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

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

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

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

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

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

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

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

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

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not mention Evangeline
in her letter dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having access to the record
of the testamentary proceeding. Evangeline was not the custodian of the record. Evangeline " strongly, vehemently and
flatly denied" Nenita's charge that she (Evangeline) said that the sum of ten thousand pesos was needed in order that
Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of Nenita's pension from the
Federal Government.

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

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

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

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

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

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

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

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

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

In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an
obviously illiterate testatrix, could have readily perceived that the will is void.

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

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

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

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

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

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

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

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

SO ORDERED.

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

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

PARAS, C.J.:

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

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

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

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

(Sgd.) BIBIANA ILLEGIBLE

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

5
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino
Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil Procedure.
The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however,
that there is no need for such recital because the cross written by the testator after his name is a sufficient signature and
the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a
thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the
ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a
thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

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

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

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge of the
Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled "Testate Estate of
the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document purporting
to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the age of 92 years. The
heir to the entire estate of the deceased except the properties bequeathed to her other niece and nephews, namely,
Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias is, pursuant to said instrument,
Aurea Matias, likewise, appointed therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased,
opposed the probate of her alleged will, and, after appropriate proceedings, the court, presided over by respondent Judge,
issued an order, dated February 8, 1956, sustaining said opposition and denying the petition for probate. Subsequently,
Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751), where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special administrator
of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was set for hearing on
February 23, 1956, on which date the court postponed the hearing to February 27, 1956. Although notified of this order,
Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent motion praying for additional time within

6
which to answer the charges preferred against him by Basilia Salud and for another postponement of said hearing. This
motion was not granted, and Basilia Salud introduced evidence in support of said charges, whereupon respondent Judge
by an order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and,
accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia Salud as special
administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide,
interpreter and adviser of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon
Plata . . . who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be appointed
special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80) years of
age, totally blind and physically incapacitated to perform the duties of said office, and that said movant is the universal
heiress of the deceased and the person appointed by the latter as executrix of her 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 Plata and Victorina Salud "for the management of the estate of the late Gabina Raquel pending final decision
on the probate of the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation
as special administratrix by reason of physical disability, due to old age, and recommended the appointment, in her place,
of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a
reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said
resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to
said Aurea Matias she (Victorina Salud) having been the principal and most interested witness for the opposition to the
probate of the alleged will of the deceased and proposed that the administration of her estate be entrusted to the
Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution
authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said estate.
This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to collect the
rents due, or which may be due, to the estate of the deceased and to collect all the produce of her lands, which was
granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for permission to sell the
palay of the deceased then deposited in different rice mills in the province of Cavite, which respondent judge granted on
June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action against Judge Gonzales, and
Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the
ground that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference in the choice of special administratrix of the
estate of the decedent, she (petitioner) being the universal heiress to said estate and, the executrix appointed in the
alleged will of the deceased, that until its final disallowance which has not, as yet, taken place she has a special
interest in said estate, which must be protected by giving representation thereto in the management of said estate; that,
apart from denying her any such representation, the management was given to persons partial to her main opponent,
namely, Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her
(Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious unfitness for said office,
she being over eighty (80) years of age and blind; that said disability is borne out by the fact that on March 17, 1956,
Basilia Salud resigned as special administratrix upon such ground; that the Rules of Court do not permit the appointment
of more than one special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be
heard in connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the
deceased and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and without any
abuse of discretion; that petitioner can not validly claim any special interest in the estate of the deceased, because the
probate of the alleged will and testament of the latter upon which petitioner relies has been denied; that Horacio
Rodriguez was duly notified of the proceedings for his removal; and that Victorina Salud and Ramon Plata have not done
anything that would warrant their removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the following
reasons:

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1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956, the
record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that set for the
hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956, postponing said hearing to
February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud 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 main
opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be considered for the management of
said. As a consequence, said petitioner had no opportunity to object to the appointment of Basilia Salud as special
administratrix, and of Victorina Salud, as her assistant and adviser, and the order of February 27, 1956, to this effect,
denied due process to said petitioner.

3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent Judge
would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the latter
"shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators Basilia Salud, Victorina Salud and
Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment of the three (3)
above-named persons for the management of the estate of the late Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and Basilia
Salud regarding the person to be appointed special administrator of the estate of the deceased. The former proposed
Horacio Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an order dated August 11, 1952, the
Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio Rodriguez and against
Victorina Salud, upon the ground that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital,
resides In the City of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of
Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the order of respondent Judge of
February 27, 1956, removing Rodriguez and appointing Victorina Salud to the management of the estate, amounted to a
reversal of the aforementioned order of Judge Bernabe of August 11, 1952.

6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the order to
this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The probate of said
alleged will being still within realm of legal possibility, Aurea Matias has as the universal heir and executrix designated
in said instrument a special interest to protect during the pendency of said appeal. Thus, in the case of Roxas vs.
Pecson* (46 Off. Gaz., 2058), this Court held that a widow, designated as executrix in the alleged will and testament of her
deceased husband, the probate of which had denied in an order pending appeal, "has . . . the same beneficial
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 court."

7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one, represented
by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court had
deemed it best to appoint more than one special administrator, justice and equity demands that both factions be
represented in the management of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be appointed to
administrator temporarily" the estate of the deceased, must be considered in the light of the facts obtaining in said case.
The lower court appointed therein 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 independent special administrators. In
the case at bar 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).

8
Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the matter of
removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties concerned, for
action in conformity with the views expressed herein, with costs against respondents Victorina Salud and Ramon Plata. It
is so ordered.

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the
court below, is whether one of the subscribing witnesses was present in the small room where it was executed at the time
when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside,
some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator
and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this finding, of
course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the
last will and testament of the deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo (5
Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the
other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to
have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to
the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have been seen each other sign, had they chosen to do so,
considering their mental and physical condition and position with relation to each other at the moment of
inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription
of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not
mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of
each other if it appears that they would not have been able to see each other sign at that moment, without changing their
relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing conditions and their position with relation to each other

9
were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

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

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its duplicate, marked
as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte, deceased, and appointing as executor
Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to probate of the
original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano
as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be published for three (3)
successive weeks, previous to the time appointed, in the newspaper "Manila chronicle", and also caused personal service
of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November 10, 1958, she
petitioned to have herself appointed as a special administrator, to which proponent objected. Hence, on November 18,
1958, the court issued an order appointing the Philippine Trust Company as special administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his own Natividad's
opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1, 1959, he filed a
motion for the admission of an amended and supplemental petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"),
which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and
Enrique Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after several hearings the court issued the
order admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this Court, the
amount involved being over P200,000.00, on the ground that the same is contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by three instrumental
witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was
acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the decedent's last will and testament, together with
former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the

10
Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only
one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and
marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy
attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except
for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of
said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein
and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the
testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed
on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate
(Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that
granting that the documents were genuine, they were executed through mistake and with undue influence and pressure
because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be inferred from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by
them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the presence of the three attesting
witnesses, the notary public who acknowledged the will; and Atty. Samson, who actually prepared the documents; that the
will and its duplicate were executed in Tagalog, a language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors,
Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same had
which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly contradicted by
expert Martin Ramos for the proponents, but principally because of the paucity of the standards used by him to support
the conclusion that the differences between the standard and questioned signatures are beyond the writer's range of
normal scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix besides
those affixed to the original of the testament (Exh. A); and we feel that with so few standards the expert's opinion and the
signatures in the duplicate could not be those of the testatrix becomes extremely hazardous. This is particularly so since
the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the charge
of forgery, taking into account the advanced age of the testatrix, the evident variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear
reliable, considering the standard and challenged writings were affixed to different kinds of paper, with different surfaces

11
and reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to overcome
that of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the
trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is
proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity
of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other property and that they should respect the distribution
made in the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary experience, often results
in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are
valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the Court of
Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of
probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did
sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where
the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
"witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of
the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the
defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the statutory requirements,
where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a
testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages
of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429).
These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against
fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is not
entitled to probate. Since they opposed probate of original because it lacked one signature in its third page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is defective and invalid, then in law there is no
other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being superfluous and irrelevant. At any rate,
said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original testament
was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It is nowhere proved or claimed that the
amendment deprived the appellants of any substantial right, and we see no error in admitting the amended petition.

12
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance of Cebu, and
MANUEL B. LUGAY, respondents

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation and
undue influence; that the said instrument was execute without the testator having been fully informed of the content
thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not
executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will
and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance with law, particularly Articles 805 and 806 of
the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel
H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to
have been acknowledged. Reduced to simpler terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that the three attesting witnesses must appear
before the notary public to acknowledge the same. As the third witness is the notary public himself, petitioner argues that
the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even
if the notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely technical reason that
one of the witnesses required by law signed as certifying to an acknowledgment of the testator's
signature under oath rather than as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the appellant that the
last will and testament in question was not executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro,
100 Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of.
(The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of
the English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness were
the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot
be done because he cannot split his personality into two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement Balinon
v. De Leon, 50 0. G. 583.) That function would defeated if the notary public were one of the attesting instrumental
witnesses. For them he would be interested sustaining the validity of the will as it directly involves him and the validity of

13
his own act. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize
fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of
the document he has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130).
There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122
So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because
the notaries public and witnesses referred to aforecited cases merely acted as instrumental, subscribing attesting
witnesses, and not as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will or file another with the office of the
Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses, would have the effect
of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 80 be
requiring at least three credible witnesses to act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the notary public for or that purpose. In the circumstances, the law
would not be duly in observed.

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

Cost against the appellee.

G.R. No. L-7179 June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOA MATEA LEDESMA, oppositor-appellant.

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

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialect,
marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and
Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said deceased,
appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The appeal was
made directly to this Court because the value of the properties involved exceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the
testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the
notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil
was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal
Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they
saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento"

14
and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because
she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not
elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement
that no one would question it because the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the improbable
story of the witnesses. It is squarely contradicted by the concordant testimony of the instrumental witnesses, Vicente Yap,
Atty. Ramon Tabiana, and his wife Gloria Montinola, who asserted under oath that the testament was executed by
testatrix and witnesses in the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on
March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da.
Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to execute her will, when all three
witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in
the testimony of Contestant's witnesses. Both claim to have heard the word "testamento" for the first time when Yap used
it; and they claimed ability to recall that word four years later, despite the fact that the term meant nothing to either. It is
well known that what is to be remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884).
Likewise, Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it, precisely on
March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that particular day stuck in
her mind. Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria from the
kitchen of the house, that was later proved to have been separated from the deceased's quarters, and standing at a much
lower level, so that conversations in the main building could not be distinctly heard from the kitchen. Later, on redirect
examination, Allado sought to cure his testimony by claiming that he was upstairs in a room where the servants used to
eat when he heard Yap converse with his mistress; but this correction is unavailing, since it was plainly induced by two
highly leading questions from contestant's counsel that had been previously ruled out by the trial Court. Besides, the
contradiction is hardly consonant with this witness' 18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the contestant-
appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the codicil, and
the identity of the person who inserted the date therein, are not material and are largely imaginary, since the witness Mrs.
Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the argument that
the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is proof that its
contents were not understood by the testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment (in
Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had
been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary
public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil
to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the
part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling
past events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699),
the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one
single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in
the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public
by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the case
before us. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged
by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should

15
be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die
ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is noteworthy that Article
806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against appellant.

G.R. No. 103554 May 28, 1993

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

REGALADO, J.:

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

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight
years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer,
Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will.1 It was declared
therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties
to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara,
all of whom do not appear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-
R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the testator passed away before his petition could finally be heard
by the probate court.3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment
as special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed
by the probate court in its order of March 6, 1981.4

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

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

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to
the allowance of the testator's will on the ground that on the alleged date of its execution, the testator was already in the

16
poor state of health such that he could not have possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein.7

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

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

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive
testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo
Caballero executed the Last Will and Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime
when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact
that this was indeed his Last Will. At the start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the examination of this signature of Mateo Caballero in
Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the oppositors.

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

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

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

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

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the
meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all
of them and of one another. Or as the language of the law would have it that the testator signed the will
"in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect
in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law." 11

17
Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's
resolution of January 14, 1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled
upon said issue in a manner not in accord with the law and settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before respondent court, the validity of the attestation clause in the last will
of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory observations which we
feel should be made in aid of the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his estate after his death. 13 Under the Civil Code, there are two kinds
of wills which a testator may execute.14 the first kind is the ordinary or attested will, the execution of which is governed by
Articles 804 to 809 of the Code. Article 805 requires that:

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

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

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

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

In addition, the ordinary will must be acknowledged before a notary public by a testator and the attesting witness. 15hence
it is likewise known as notarial will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must personally
read the will, if able to do so. Otherwise, he should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged. 16

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

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

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has
been executed before them and to the manner of the execution the same. 19 It is a separate memorandum or record of the
facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed. 20 It is made for the purpose of preserving in
a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the
memory of the attesting witnesses, or other casualty, such facts may still be proved. 21

18
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the
will, 22 should state (1) the number of the pages used upon which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page thereof in the presence of the attesting witnesses; and (3) that
the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that saidwitnesses also
signed the will and every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard
against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the
pages;23 whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very same instrument executed by the testator and
attested to by the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied
in the attestation clause.25 The attestation clause, therefore, provide strong legal guaranties for the due execution of a will
and to insure the authenticity thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed
only by them.27 Where it is left unsigned, it would result in the invalidation of the will as it would be possible and easy to
add the clause on a subsequent occasion in the absence of the testator and its witnesses.28

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

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

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

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

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the
Opposite of our respective names, we do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO; has published unto us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page numbered correlatively in the letters on the upper part of
each page, as his Last Will and Testament and he has the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the presence of the said testator and in the
presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the
testator and of one another. "Attestation" and "subscription" differ in meaning. Attestation is the act of senses, while
subscription is the act of the hand. The former is mental, the latter mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper
published as a will is only to write on the same paper the names of the witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's execution of the will in order to see
and take note mentally that those things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a

19
mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the
attestation.

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

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

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

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

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render the
will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with
all the requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page
by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their
respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations,
the will cannot be stamped with the imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein he urged caution in
the application of the substantial compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:

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

20
3. We stress once more that under Article 809, the defects and imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or imperfections would not render a will invalid should it be
proved that the will was really executed and attested in compliance with Article 805. In this regard, however, the manner
of proving the due execution and attestation has been held to be limited to merely an examination of the will itself without
resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses
signed each and every page of the will in the presence of the testator and of each other.35 In such a situation, the defect is
not only in the form or language of the attestation clause but the total absence of a specific element required by Article
805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present
case since there is no plausible way by which we can read into the questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its
pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and
of one another.

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

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

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

One view advance the liberal or substantial compliance rule. This was first laid down in the case of Abangan vs.
Abangan,36 where it was held that the object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of
the testator's last will, must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et al.,41and Nayve vs. Mojal, et al.42 all adhered to this
position.

The other view which advocated the rule that statutes which prescribe the formalities that should be observed in the
execution of wills are mandatory in nature and are to be strictly construed was followed in the subsequent cases of In the
Matter of the Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46and Sano vs.
Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly conflicting decisions in the
aforementioned cases. In said case of Gumban, the attestation clause had failed to state that the witnesses signed the will

21
and each and every page thereof on the left margin in the presence of the testator. The will in question was disallowed,
with these reasons therefor:

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

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

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in
doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse.

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

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

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

22
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive
the seeming diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata,49Rodriguez vs.
Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling as restated in Gumban.
But De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De Gorostiza,55Sebastian vs.
Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De
Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation rule and
established a trend toward an application of the liberal view.

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

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

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

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

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

The so-called liberal rule, the Court said in Gil vs. Murciano,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."

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

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED
and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition

23
for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the
estate of the said decedent.

SO ORDERED.

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

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

GUTIERREZ, JR. J.:

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

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

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

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

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

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

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

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

24
The petitioner decided to file the present petition.

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

Article 805 of the Civil Code provides:

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

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

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

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

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

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

We find the petition meritorious.

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

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

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed
in a manner which fully satisfies the purpose of Identification.

25
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

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

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

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

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

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

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

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

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

... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two
other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of
the notary public before whom the testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control where the purpose of the law

26
 to guarantee the Identity of the testament and its component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on record attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

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

SO ORDERED.

G.R. No. 74695 September 14, 1993

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

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 19861 of the First Civil Cases Division of the then Intermediate
Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 19832 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament3 with codicil4 of the late Brigido Alvarado.

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

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

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

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

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was
issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the appeal was that the

27
deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto was
executed; that since the reading required by Art. 808 of the Civil Code was admittedly not complied with, probate of the
deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido
Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of
the three instrumental witnesses and the notary public following the reading with their respective copies of the
instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the testator the contents of the drafted will was served.

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

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

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

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

Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so
considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner presented before the trial
court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine Eye
Research Institute),6 the contents of which were interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was
admitted by private respondent.7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he
could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first consultation.8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the
day the will and the codicil were executed but chose not to do so because of "poor eyesight."9 Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

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

The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used
in Art. 808, to wit:

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

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will
and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no

28
other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art.
808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will
and codicil did so confortably with his instructions. Hence, to consider his will as validly executed and entitled to probate, it
is essential that we ascertain whether Art. 808 had been complied with.

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

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

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

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

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

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three
instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that
the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is
no evidence, and petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known
and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not
the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony
of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed
wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of
securing his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and
codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the
three instrumental witnesses and the testator's physician) asked the testator whether the contents of the document were
of his own free will. Brigido answered in the affirmative. 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

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

29
 The object of the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on the subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's will, must be disregarded(emphasis
supplied).

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

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

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

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

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

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

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

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE PRECILLA,
petitioner administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO,
DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO NARCISO,
FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO,
ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.

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

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

Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:chanrob1es virtual
1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents,

30
ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an
estate consisting mostly of real properties.

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

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

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

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

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

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

31
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In
declaring the due execution of the will, the probate court took note that no evidence had been presented to establish that
the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an earlier will did not,
prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960
testament was contained in one page does not render the latter invalid; that, the erasures and alterations in the instrument
were insignificant to warrant rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were
noted by the oppositors are even indicative of their truthfulness. The probate court, also considering that petitioner had
already shown capacity to administer the properties of the estate and that from the provisions of the will she stands as the
person most concerned and interested therein, appointed said petitioner regular administratrix with a bond for P50,000.00.
From this order all the oppositors appealed, the case being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors motion of 14 December 1965 for the removal of
the then special administratrix, as follows:jgc:chanrobles.com.ph

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

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

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

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

The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her lifetime,
executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew and
spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary
public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M.
Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales uniformly
declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special administratrix) to
witness the execution of the last will of Doa Gliceria A. del Rosario; that they arrived at the house of the old lady at No.

32
2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the time was
apparently of clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will, which was
already prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses thereafter
signed the will in the presence of the testatrix and the notary public and of one another. There is also testimony that after
the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and deed, the notary
public asked for their respective residence certificates which were handed to him by Alfonso Precilla, clipped together; 5
that after comparing them with the numbers already written on the will, the notary public filled in the blanks in the
instrument with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also testified that on
that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the will.

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

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

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

"Q But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from which you
could inform the court as to the condition of the vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed that the right
eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300
(20/300).

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

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

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

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

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

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

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

33
"A After her discharge from the hospital, she was coming to my clinic for further examination and then sometime later
glasses were prescribed.
x x x

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

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

"Q How about the right eye?

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

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

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

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

x x x

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

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.

"Q The vision in the right eye was corrected?

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

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

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

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so that the words had to be written very close on the top, bottom
and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol" &", apparently
to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doa Gliceria.
Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES",
"instrumental" for "Instrumental", and "acknowledged" for "acknowledge, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so important a document

34
containing the final disposition of ones worldly possessions should be embodied in an informal and untidily written
instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so. The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and
should be reversed.

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

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

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

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

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

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

The oppositors petition was based allegedly on the existence in the special administratrix of an interest adverse to that of
the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del Rosario to
execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D.
Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon,
assessed at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out that since
the properties were already sold no longer form part of the estate. The conflict of interest would not be between the estate
and third parties, but among the different claimants of said properties, in which case, according to the court, the
participation of the special administratrix in the action for annulment that may be brought would not be necessary.

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

35
an action arising out of a right belonging to their ancestor. 21

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

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

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

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

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

36
G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

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

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the deceased Isabel Gabriel. *

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

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

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

PATUNAY NG MGA SAKSI

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

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

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

37
bequeathed all properties and estate, real or personal already acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies as aforementioned.

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

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

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

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

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

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

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

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

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

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

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

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

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

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was
opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Memoranda, 5and on
August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration
stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the supposed last wig
and testament of Isabel Gabriel was not executed in accordance with law because the same was signed

38
 on several occasions, that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.

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

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion
and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court. The
Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to
require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the
allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent
thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and for
insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration 10 which private
respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Rejoinder to Reply
followed. Finally, on March 27, 1974, We resolved to give due course to the petition.

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

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

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

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

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words
"Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the
same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have
dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.

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

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

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

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

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

39
It will be noted from the above assignments of errors that the same are substantially factual in character and content.
Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction, the
factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule
has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptisia
vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-
25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said:

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

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

Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of
errors.

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

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

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

(1) Any person not domiciled in the Philippines,

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

Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his
good standing in the community, his reputation for trustworthythiness and reliableness, his honesty and uprightness in

40
order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in
Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his
answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony ,
or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write
to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the witness in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the
witness unless the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given
the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization must
be supported by two character witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the
Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a
will or testament and affirm the formalities attendant to said execution. And We agree with the respondent that the rulings
laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable
to instrumental witnesses to wills executed under the Civil Code of the Philippines.

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

It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of
one another, While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be a credible witness under Article 805.

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

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

41
distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who
testify to facts from or upon hearsay. " emphasis supplied).

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

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

As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of
Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).

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

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

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

In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is
Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his testimony and arises from the
belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio
del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a
witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial
courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be
competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications
under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory
that evidence be first established on record that the witnesses have a good standing in the community or that they are
honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and their testimonies must be
credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it
was fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses were "credible
witnesses that is, that they have a good standing in the community and reputed to be trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of
fact of the respondent court in finding that the preparation and execution of the will was expected and not coincidental, in
finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to

42
enable him to type such data into the document Exhibit "F", in holding that the fact that the three typewritten lines under
the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the will without note or
document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed on April 15,
1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial
court gave undue importance to the picture takings as proof that the will was improperly executed, and in holding that the
grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary) presented by the
petitioner had been explained away.

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

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

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

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

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

43
respondent Court held that on the occasion of the will making on April 15, 1961, the list was given immediately to Atty.
Paraiso and that no such list was given the lawyer in any previous occasion or date prior to April 15, 1961.

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

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

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

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

44
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15,
1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the will, the
documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and
convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will
by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The
attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the execution of the will. This is the very purpose of the
attestation clause which is made for the purpose of preserving in permanent form a record of the facts attending the
execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may still
be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).

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

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

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

It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent
appellate court because the trial court was in a better position to weigh and evaluate the evidence presented in the course
of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has
found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of
which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts particularly
when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses

45
hes peculiarly within the province of trial courts and generally, the appellate court should not interfere with the same. In
the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts and
circumstances established in the record. Whereas the appellate court said that "Nothing in the record supports the trial
court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's
conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not have
witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a
conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed and that there is nothing in the entire record to support
the conclusion of the court a quo that the will signing occasion was a mere coincidence and that Isabel Gabriel made an
appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to
reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.

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

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

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's
wish to be interred according to Catholic rites the second was a general directive to pay her debts if any; the third
provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel;

46
the fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for
each legatee the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in
general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed in favor of
appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which
judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co.,
G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).

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

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

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

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

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against
the petitioner.

SO ORDERED.

47
FIRST DIVISION
[ G.R. NO. 174144, April 17, 2007 ]
BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS, RESPONDENT.

DECISION
CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau[1], siblings who fought bitterly over the inheritance of their
father Isaac's estate. Jurisprudence is also replete with cases involving acrimonious conflicts between brothers and sisters
over successional rights. This case is no exception.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and respondent
Resurreccion A. Bihis, died at the Metropolitan Hospital in Tondo, Manila.

On May 24, 1994, petitioner filed a petition for the probate of the last will and testament of the decedent in Branch 95[2] of
the Regional Trial Court of Quezon City where the case was docketed as Sp. Proc. No. Q-94-20661.

The petition alleged the following: petitioner was named as executrix in the decedent's will and she was legally qualified to
act as such; the decedent was a citizen of the Philippines at the time of her death; at the time of the execution of the will,
the testatrix was 79 years old, of sound and disposing mind, not acting under duress, fraud or undue influence and was
capacitated to dispose of her estate by will.

Respondent opposed her elder sister's petition on the following grounds: the will was not executed and attested as
required by law; its attestation clause and acknowledgment did not comply with the requirements of the law; the signature
of the testatrix was procured by fraud and petitioner and her children procured the will through undue and improper
pressure and influence.

In an order dated November 9, 1994, the trial court appointed petitioner as special administratrix of the decedent's estate.
Respondent opposed petitioner's appointment but subsequently withdrew her opposition. Petitioner took her oath as
temporary special administratrix and letters of special administration were issued to her.

On January 17, 2000, after petitioner presented her evidence, respondent filed a demurrer thereto alleging that petitioner's
evidence failed to establish that the decedent's will complied with Articles 804 and 805 of the Civil Code.

In a resolution dated July 6, 2001, the trial court denied the probate of the will ruling that Article 806 of the Civil Code was
not complied with because the will was "acknowledged" by the testatrix and the witnesses at the testatrix's, residence at
No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a commissioned notary public for and in
Caloocan City. The dispositive portion of the resolution read:

WHEREFORE, in view of the foregoing, the Court finds, and so declares that it cannot admit the last will and testament of
the late Felisa Tamio de Buenaventura to probate for the reasons hereinabove discussed and also in accordance with
Article 839 [of the Civil Code] which provides that if the formalities required by law have not been complied with, the will
shall be disallowed. In view thereof, the Court shall henceforth proceed with intestate succession in regard to the estate of
the deceased Felisa Tamio de Buenaventura in accordance with Article 960 of the [Civil Code], to wit: "Art. 960. Legal or
intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost
its validity, xxx."

SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the appellate court dismissed the appeal and affirmed the
resolution of the trial court.[4]

Thus, this petition.[5]

48
Petitioner admits that the will was acknowledged by the testatrix and the witnesses at the testatrix's residence in Quezon
City before Atty. Directo and that, at that time, Atty. Directo was a commissioned notary public for and in Caloocan City.
She, however, asserts that the fact that the notary public was acting outside his territorial jurisdiction did not affect the
validity of the notarial will.

Did the will "acknowledged" by the testatrix and the instrumental witnesses before a notary public acting outside the place
of his commission satisfy the requirement under Article 806 of the Civil Code? It did not.

Article 806 of the Civil Code provides:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.
One of the formalities required by law in connection with the execution of a notarial will is that it must be acknowledged
before a notary public by the testator and the witnesses.[6] This formal requirement is one of the indispensable requisites
for the validity of a will.[7] In other words, a notarial will that is not acknowledged before a notary public by the testator and
the instrumental witnesses is void and cannot be accepted for probate.

An acknowledgment is the act of one who has executed a deed in going before some competent officer and declaring it to
be his act or deed.[8] In the case of a notarial will, that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare before an officer of
the law, the notary public, that they executed and subscribed to the will as their own free act or deed.[9] Such declaration is
under oath and under pain of perjury, thus paving the way for the criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the free consent of the testator.[10] It also provides a further degree
of assurance that the testator is of a certain mindset in making the testamentary dispositions to the persons instituted as
heirs or designated as devisees or legatees in the will.[11]

Acknowledgment can only be made before a competent officer, that is, a lawyer duly commissioned as a notary public.

In this connection, the relevant provisions of the Notarial Law provide:

SECTION 237. Form of commission for notary public. -The appointment of a notary public shall be in writing, signed by
the judge, and substantially in the following form:

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________ in said province, was on the ___ day of __________,
anno Domini nineteen hundred and _______, appointed by me a notary public, within and for the said province, for the
term ending on the first day of January, anno Domini nineteen hundred and _____.

_________________
Judge of the Court of
irst Instance[12] of said
Province

xxx xxx xxx

49
SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in a province shall be co-extensive with the
province. The jurisdiction of a notary public in the City of Manila shall be co-extensive with said city. No notary shall
possess authority to do any notarial act beyond the limits of his jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in his favor to perform notarial acts.[13] It is issued "within and for" a
particular territorial jurisdiction and the notary public's authority is co-extensive with it. In other words, a notary public is
authorized to perform notarial acts, including the taking of acknowledgments, within that territorial jurisdiction
only. Outside the place of his commission, he is bereft of power to perform any notarial act; he is not a notary public. Any
notarial act outside the limits of his jurisdiction has no force and effect. As this Court categorically pronounced in Tecson
v. Tecson:[14]

An acknowledgment taken outside the territorial limits of the officer's jurisdiction is void as if the person taking it ware
wholly without official character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in Quezon City, he lacked the authority to take the
acknowledgment of the testatrix and the instrumental witnesses. In the same vein, the testatrix and her witnesses could
not have validly acknowledged the will before him. Thus, Felisa Tamio de Buenaventura's last will and testament was, in
effect, not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself
authorizes their validity.

The violation of a mandatory or a prohibitory statute renders the act illegal and void unless the law itself declares its
continuing validity. Here, mandatory and prohibitory statutes were transgressed in the execution of the alleged
"acknowledgment." The compulsory language of Article 806 of the Civil Code was not complied with and the interdiction of
Article 240 of the Notarial Law was breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all
completely void.

The Court cannot turn a blind eye to Atty. Directo's participation in the preparation, execution and unlawful
"acknowledgment" of Felisa Tamio de Buenaventura's will. Had he exercised his notarial commission properly, the intent
of the law to effectuate the decedent's final statements[15] as expressed in her will would not have come to
naught.[16] Hence, Atty. Directo should show cause why he should not be administratively sanctioned as a member of the
bar and as an officer of the court.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

Let a copy of this decision be furnished the Commission on Bar Discipline of the Integrated Bar of the Philippines for
investigation, report and recommendation on the possible misconduct of Atty. Macario O. Directo.

SO ORDERED.

50
A.C. No. 5281 February 12, 2008

MANUEL L. LEE, petitioner,

vs.
ATTY. REGINO B. TAMBAGO, respondent.

RESOLUTION

CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with
violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will.
Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported
witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land
which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on June 30, 1965.1 Complainant, however,
pointed out that the residence certificate2 of the testator noted in the acknowledgment of the will was dated January 5,
1962.3 Furthermore, the signature of the testator was not the same as his signature as donor in a deed of
donation4 (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in
the will and in the deed of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all
angle[s]."5

Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and
Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits.

Complainant further asserted that no copy of such purported will was on file in the archives division of the Records
Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ
on June 30, 1965 and is available in this Office[s] files.6

Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that
complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He
alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed
and actually notarized by respondent per affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and
corroborated by the joint affidavit8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9

Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by
complainant against him in the Office of the Ombudsman "did not prosper."

Respondent did not dispute complainants contention that no copy of the will was on file in the archives division of the
NCCA. He claimed that no copy of the contested will could be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first
file an action for the declaration of nullity of the will and demand his share in the inheritance.

51
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.10

In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial
Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly
Canon 111 and Rule 1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the investigating commissioner of
the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this
Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the
applicable laws and rules, and considering Respondents failure to comply with the laws in the discharge of his
function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year
and Respondents notarial commission is Revoked and Disqualified from reappointment as Notary Public for
two (2) years.14

We affirm with modification.

A will is an act 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.15 A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities
surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments
and to guarantee their truth and authenticity.16

A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator
himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.17

The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be
considered void.18 This is in consonance with the rule that acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the
witnesses.19 The importance of this requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate provision.20

An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and
declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the
notary public that the same is his or her own free act and deed.21 The acknowledgment in a notarial will has a two-fold
purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in
the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither
strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old
residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent
invalidated the will.

As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will
and those of notarization. As we held in Santiago v. Rafanan:22

52
 The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the
party to every document acknowledged before him had presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of issue and date as part of such certification.

These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight
attached to notarized documents.23 A notary public, especially a lawyer,24 is bound to strictly observe these elementary
requirements.

The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or
instrument:

Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other
document acknowledged before a notary public shall have certified thereon that the parties thereto have
presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there
shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each
[cedula] residence certificate as aforesaid.25

The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated:

When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it
shall be the duty of such person xxx with whom such transaction is had or business done, to require the
exhibition of the residence certificate showing payment of the residence taxes by such person xxx.

In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it
is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired
residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence
Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.

On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives
division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The notary
public shall not be required to retain a copy of the will, or file another with the office of the Clerk of
Court. (emphasis supplied)

Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a
cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his
notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological
order:

1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

53
 7. if the instrument is a contract, a brief description of the substance of the instrument.27

In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a
prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To
reinforce his claim, he presented a photocopy of a certification28 stating that the archives division had no copy of the
affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The
proponent must first prove the existence and cause of the unavailability of the original,29 otherwise, the evidence
presented will not be admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of
the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary
evidence.

In the same vein, respondents attempt to controvert the certification dated September 21, 199930 must fail. Not only did
he present a mere photocopy of the certification dated March 15, 2000;31 its contents did not squarely prove the fact of
entry of the contested will in his notarial register.

Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the performance of their
duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.33

Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be
taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in
this case, are no longer alive to identify the instrument and to confirm its contents.34 Accordingly, respondent must be held
accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.35

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in
the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in
the manner required by law.

xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates.36

These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted
transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule 1.0139 of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution
and obey the laws of the land.40 For a lawyer is the servant of the law and belongs to a profession to which society has
entrusted the administration of law and the dispensation of justice.41

While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes
responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover
make himself an example for others to emulate.42 Being a lawyer, he is supposed to be a model in the community in so far
as respect for the law is concerned.43

The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies disciplinary action
against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has

54
engaged in professional misconduct.45 These sanctions meted out to errant lawyers include disbarment, suspension and
reprimand.

Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that the power to disbar
must be exercised with great caution47 and should not be decreed if any punishment less severe such as reprimand,
suspension, or fine will accomplish the end desired.48 The rule then is that disbarment is meted out only in clear cases of
misconduct that seriously affect the standing and character of the lawyer as an officer of the court.49

Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his
claims that he "exercised his duties as Notary Public with due care and with due regard to the provision of existing law
and had complied with the elementary formalities in the performance of his duties xxx," we find that he acted very
irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from
the practice of law. It is, as well, a sufficient basis for the revocation of his commission50 and his perpetual disqualification
to be commissioned as a notary public.51

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1)
the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional
Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial
commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an
officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.

Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office
of the Bar Confidant, as well as made part of the personal records of respondent.

SO ORDERED.

G.R. No. 145545 June 30, 2008

PAZ SAMANIEGO-CELADA, petitioner,

vs.
LUCIA D. ABENA, respondent.

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the Decision1dated
October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the Decision2 dated March 2, 1993 of
the Regional Trial Court (RTC), Branch 66, Makati City. The RTC had declared the last will and testament of Margarita S.
Mayores probated and designated respondent Lucia D. Abena as the executor of her will. It also ordered the issuance of
letters testamentary in favor of respondent.

The facts are as follows:

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while respondent
was the decedents lifelong companion since 1929.

On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents, grandparents
and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay, Manuelita Samaniego
Sajonia, Feliza Samaniego, and petitioner.

55
Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she bequeathed one-half of
her undivided share of a real property located at Singalong Manila, consisting of 209.8 square meters, and covered by
Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares
or one-third portion each. She likewise bequeathed one-half of her undivided share of a real property located at San
Antonio Village, Makati, consisting of 225 square meters, and covered by TCT No. 68920 to respondent, Isabelo M.
Abena, and Amanda M. Abena in equal shares or one-third portion each. Margarita also left all her personal properties to
respondent whom she likewise designated as sole executor of her will.

On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1531.

On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of Makati. The case
was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.

On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and
respondent as the executor of the will. The dispositive portion of the decision states:

In view of the foregoing, judgment is hereby rendered:

1) declaring the will as probated;

2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in paragraph
VI of the probated will;

3) ordering the issuance of letters testamentary in favor of Lucia Abena.

So ordered.4

Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated October 13,
2000, affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals decision states:

WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is
hereby ORDERED DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO, with cost to
oppositors-appellants.

SO ORDERED.5

Hence, the instant petition citing the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT

INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL
BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND

III.

56
 WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER
SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING
LETTERS OF ADMINISTRATION TO HER.6

Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply
with the formalities required by law, (2) whether said court erred in not declaring the will invalid because it was procured
through undue influence and pressure, and (3) whether it erred in not declaring petitioner and her siblings as the legal
heirs of Margarita, and in not issuing letters of administration to petitioner.

Petitioner, in her Memorandum,7 argues that Margaritas will failed to comply with the formalities required under Article
8058 of the Civil Code because the will was not signed by the testator in the presence of the instrumental witnesses and in
the presence of one another. She also argues that the signatures of the testator on pages A, B, and C of the will are not
the same or similar, indicating that they were not signed on the same day. She further argues that the will was procured
through undue influence and pressure because at the time of execution of the will, Margarita was weak, sickly, jobless
and entirely dependent upon respondent and her nephews for support, and these alleged handicaps allegedly affected
her freedom and willpower to decide on her own. Petitioner thus concludes that Margaritas total dependence on
respondent and her nephews compelled her to sign the will. Petitioner likewise argues that the Court of Appeals should
have declared her and her siblings as the legal heirs of Margarita since they are her only living collateral relatives in
accordance with Articles 10099 and 101010 of the Civil Code.

Respondent, for her part, argues in her Memorandum11 that the petition for review raises questions of fact, not of law and
as a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal to the
Supreme Court. She also points out that although the Court of Appeals at the outset opined there was no compelling
reason to review the petition, the Court of Appeals proceeded to tackle the assigned errors and rule that the will was
validly executed, sustaining the findings of the trial court that the formalities required by law were duly complied with. The
Court of Appeals also concurred with the findings of the trial court that the testator, Margarita, was of sound mind when
she executed the will.

After careful consideration of the parties contentions, we rule in favor of respondent.

We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a petition for
review on certiorari under Rule 45 of the Rules of Civil Procedure.

The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the presence of the
witnesses and of one another, whether or not the signatures of the witnesses on the pages of the will were signed on the
same day, and whether or not undue influence was exerted upon the testator which compelled her to sign the will, are all
questions of fact.

This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil Procedure.
Section 112 of Rule 45 limits this Courts review to questions of law only.

Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the findings
of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by this Court, unless the
case falls under any of the following recognized exceptions:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

57
 (5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by
the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and
contradicted by the evidence on record.13

We find that this case does not involve any of the abovementioned exceptions.

Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioners arguments
lack basis. The RTC correctly held:

With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator [Margarita
Mayores] was not mentally capable of making a will at the time of the execution thereof, the same is without
merit. The oppositors failed to establish, by preponderance of evidence, said allegation and contradict the
presumption that the testator was of sound mind (See Article 800 of the Civil Code). In fact, witness for the
oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator months before her death,
testified that Margarita Mayores could engage in a normal conversation and he even stated that the illness of the
testator does not warrant hospitalization. Not one of the oppositors witnesses has mentioned any instance that
they observed act/s of the testator during her lifetime that could be construed as a manifestation of mental
incapacity. The testator may be admitted to be physically weak but it does not necessarily follow that she was not
of sound mind. [The] testimonies of contestant witnesses are pure aforethought.

Anent the contestants submission that the will is fatally defective for the reason that its attestation clause states
that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only
because the attestation is not a part of the notarial will, the same is not accurate. While it is true that the
attestation clause is not a part of the will, the court, after examining the totality of the will, is of the considered
opinion that error in the number of pages of the will as stated in the attestation clause is not material to invalidate
the subject will. It must be noted that the subject instrument is consecutively lettered with pages A, B, and C
which is a sufficient safeguard from the possibility of an omission of some of the pages. The error must have
been brought about by the honest belief that the will is the whole instrument consisting of three (3) pages
inclusive of the attestation clause and the acknowledgement. The position of the court is in consonance with the
"doctrine of liberal interpretation" enunciated in Article 809 of the Civil Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805."

The court also rejects the contention of the oppositors that the signatures of the testator were affixed on different
occasions based on their observation that the signature on the first page is allegedly different in size, texture and
appearance as compared with the signatures in the succeeding pages. After examination of the signatures, the
court does not share the same observation as the oppositors. The picture (Exhibit "H-3") shows that the testator
was affixing her signature in the presence of the instrumental witnesses and the notary. There is no evidence to
show that the first signature was procured earlier than February 2, 1987.

58
 Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the subject
will. In fact, the picture reveals that the testator was in a good mood and smiling with the other witnesses while
executing the subject will (See Exhibit "H").

In fine, the court finds that the testator was mentally capable of making the will at the time of its execution, that
the notarial will presented to the court is the same notarial will that was executed and that all the formal
requirements (See Article 805 of the Civil Code) in the execution of a will have been substantially complied with
in the subject notarial will.14 (Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are not
compulsory heirs of the decedent under Article 88715 of the Civil Code and as the decedent validly disposed of her
properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedents estate.

WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in CA-G.R.
CV No. 41756 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

59