Caneda v.
CA CA affirmed the probate court’s decision stating that it substantially complies with
222 SCRA 781
FACTS:
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 before
3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of legacies and devises
his real and personal properties to several people all of whom do not appear to be
related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the probate of his last will
and testament, but numerous postponements pushed back the initial hearing of the
probate court regarding the will.
On May 29, 1980, the testator passed away before his petition could finally be heard by
the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special
administrator of the testator’s estate.
Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted
a second petition for intestate proceedings. They also opposed the probate of the
testator’s will and the appointment of a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as special administrator
and gave an order that the testate proceedings for the probate of the will had to be
heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance of the testator’s
will on the ground that on the alleged date of its execution, the testator was already in
poor state of health such that he could not have possibly executed the same. Also the
genuineness of the signature of the testator is in doubt.
On the other hand, one of the attesting witnesses and the notary public testified that
the testator executed the will in question in their presence while he was of sound and
disposing mind and that the testator was in good health and was not unduly influenced
in any way in the execution of his will.
Probate court then rendered a decision declaring the will in question as the last will
and testament of the late Mateo Caballero.
Article 805. Hence this appeal.
ISSUE:
W/N the attestation clause in the will of the testator is fatally defective or can
be cured under the art. 809.
HELD:
No. It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will must be
acknowledged before a notary public by the testator and the attesting witnesses.
The attestation clause need not be written in a language known to the testator or even
to the attesting witnesses.
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.
The attestation clause, therefore, provides strong legal guaranties for the due execution
of a will and to insure the authenticity thereof.
It is contended by petitioners that the attestation clause in the will failed to specifically
state the fact that the attesting witnesses witnessed the testator sign the will and all its
pages in their presence and that they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each other. And the Court agrees.
The attestation clause 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 space 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.”
Clearly lacking is the statement that the witnesses signed the will and every page
thereof in the presence of the testator and of one another. That the absence of the
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 probated.
Also, Art. 809 does not apply to the present case because the attestation clausetotally
omits the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. The defect in this case is not only with respect
to the form or the language of the attestation clause. The defects must be remedied by
intrinsic evidence supplied by the will itself which is clearly lacking in this case.

Therefore, the probate of the will is set aside and the case for the intestate proceedings
shall be revived.

Article 809 cannot be used to cure the defects of the will when it does not pertain to the
form or language of the will. This is because there is not substantial compliancewith
Article 805.
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.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for 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.
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.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
Taboada vs. Rosal GR L-36033. November 5, 1982
FACTS – Petitioner Apolonio Taboada filed a petition for probate of the will of the
late Dorotea perez. The will consisted of two pages, the first page containing all the
testamentary dispositions of the testator and was signed at the end or bottom of the
page by the testatrix alone and at the left hand margin by the three instrumental
witnesses. The second page consisted of the attestation clause and the
acknowledgment was signed at the end of the attestation clause by the three
witnesses and at the left hand margin by the testatrix. The trial court disallowed the
will for want of formality in its execution because the will was signed at the bottom of
the page solely by the testatrix, while the three witnesses only signed at the left hand
margin of the page. The judge opined that compliance with the formalities of the law
required that the witnesses also sign at the end of the will because the witnesses attest
not only the will itself but the signature of the testatrix. Hence, this petition.
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).

ISSUE – Was the object of attestation and subscription fully when the instrumental The objects of attestation and of subscription were fully met and satisfied in the
witnesses signed at the left margin of the sole page which contains all the present case when the instrumental witnesses signed at the left margin of the sole
testamentary dispositions? 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
HELD – executed by the testatrix. There was no question of fraud or substitution behind the
(SHORT RULING) questioned order.

On certiorari, the Supreme Court held a) that the objects of attestation and
subscription were fully met and satisfied in the present case when the instrumental
witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly identified by a
subscribing witness to be the same will executed by the testatrix; and b) that the
failure of the attestation clause to state the number of pages used in writing the will
would have been a fatal defect were it not for the fact that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental
witnesses.

(LONG RULING [VERBATIM])

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).
G.R. No. 93980 June 27, 1994 A Yes, sir.

CLEMENTE CALDE, petitioner, Q And when you were all signing this Exhibit "B"
vs. and "B-1", Exhibit "B" and "B-1" which is the
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents. testament was passed around all of you so that
each of you will sign consecutively?
Nestor P. Mondok for petitioner.
A Yes, sir.
Lazaro Padong for private respondents.
Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

PUNO, J.:
Q After Calibia Lingdan Bulanglang was made to
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the sign — I withdraw the question. How did Calibia
Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Lingdan Bulanglang sign the last will and
Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976. testament?

The records show that decedent left behind nine thousand pesos (P9,000.00) worth of A She asked Judge Tolete the place where she
property. She also left a Last Will and Testament, dated October 30, 1972, and a will affix her thumbmark so Judge Tolete directed
Codicil thereto, dated July 24, 1973. Both documents contained the thumbmarks of her hand or her thumb to her name.
decedent. They were also signed by three (3) attesting witnesses each, and
acknowledged before Tomas A. Tolete, then the Municipal Judge and Notary Public Q After she signed, who was the second to sign
Ex-Officio of Bauko, Mt. Province. allegedly all of you there present?

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before A Jose Becyagen.
the RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the
proceedings, and was duly substituted by petitioner. Private respondents, relatives of Q With what did Jose Becyagen sign the
decedent, opposed the Petitioner filed by Calde, on the following grounds: that the will testament, Exhibit "B" and "B-1"?
and codicil were written in Ilocano, a dialect that decedent did not know; that
decedent was mentally incapacitated to execute the two documents because of her
advanced age, illness and deafness; that decedent’s thumbmarks were procured A Ballpen.
through fraud and undue influence; and that the codicil was not executed in
accordance with law. Q And after Jose Becyagen signed his name with
the ballpen, who was the next to sign?
On June 23, 1988, the trial court rendered judgment on the case, approving and
allowing decedent’s will and its codicil. The decision was appealed to and reversed by A Me, sir.
the respondent Court of Appeals. It held:
Q And Jose Becyagen passed you the paper and
. . . (T)he will and codicil could pass the safeguards under Article the ballpen, Exhibit "B" and "B-1" plus the ballpen
805 of the New Civil Code but for one crucial factor of discrepancy which used to sign so that you could sign your
in the color of ink when the instrumental witnesses affixed their name, is that correct?
respective signatures. When subjected to cross-examination,
Codcodio Nacnas as witness testified as follows: A Yes, sir.

Q And all of you signed on the same table? Q And then after you signed, who was the next to
sign the document, Exhibit "B" and "B-1"?
 A Hilario Coto-ong.
Q So you passed also to Hilario Coto-ong the
same Exhibit "B" and "B-1" and the ballpen so
that he could sign his name as witness to the
document, is it not?
A Yes, sir.
Q And that is the truth and you swear that to be
the truth before the Honorable Court?
ATTY. DALOG:
He already testified under oath, Your Honor.
COURT:
Witness may answer
A Yes, sir.
For his part, Obanan Ticangan likewise admitted during cross-
examination in regard to the codicil that:
Q When you signed Exhibit "D" and "D-1", did
you all sign with the same ballpen?
A One.
Such admissions from instrumental witnesses are indeed significant
since they point to no other conclusion than that the documents
were not signed by them in their presence but on different
occasions since the same ballpen used by them supposedly in
succession could not have produced a different color from blue to
black and from black to blue. In fact, the attestation clause followed
the same pattern. The absurd sequence was repeated when they
signed the codicil, for which reason, We have no other alternative
but to disallow the Last Will and Codicil. Verily, if the witnesses and
testatrix used the same ballpen, then their signatures would have
been in only one color, not in various ones as shown in the
documents. Moreover, the signatures, in different colors as they
are, appear to be of different broadness, some being finer than the
others, indicating that, contrary to what the testamentary witnesses
declared on the witness stand, not only one ballpen was used, and,
therefore, showing that the documents were not signed by the
testatrix and instrumental witnesses in the presence of one another.
. . " (Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His
motion was denied by the respondent court in its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the correctness of the
respondent court’s conclusion that both decedent’s will and codicil were not
subscribed by the witnesses in the presence of the testator and of one another,
contrary to the requirements of Article 805 of the Civil Code. He contends that:
1. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME
COURT BY CONCLUDING BASED ON PURE SPECULATION OR
SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF
JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE
THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA
LINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER
INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;
2. THE HONORABLE COURT OF APPEALS HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH
LAW OR WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT BY DISREGARDING THE PROBATIVE
VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL
AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA
LINGDAN BULANGLANG.
The petition must fail.
The question in the case at bench is one of fact: whether or not, based on the
evidence submitted, respondent appellate court erred in concluding that both
decedent’s Last Will and Testament, and its Codicil were subscribed by the
instrumental witnesses on separate occasions. As a general rule, factual findings of
the Court of Appeals are considered final and conclusive, and cannot be reviewed on
appeal to this court. In the present instance, however, there is reason to make an
exception to that rule, since the finding of the respondent court is contrary to that of
the trial court, viz.:
. . . (Private respondents) pointed out however, that the assertions
of petitioner’s witnesses are rife with contradictions, particularly the
fact that the latter’s signatures on the documents in issue appear to
have been written in ballpens of different colors contrary to the
statements of said witnesses that all of them signed with only one
ballpen. The implication is that the subscribing witnesses to the Will
and Codicil, and the testatrix did not simultaneously sign each of
the documents in one sitting but did it piecemeal — a violation of
Art. 805 of the Code. This conclusion of the (private respondents) is
 purely circumstantial. From this particular set of facts, numerous
inferences without limits can be drawn depending on which side of
the fence one is on. For instance, considering the time interval that
elapsed between the making of the Will and Codicil, and up to the
filing of the petition for probate, the possibility is not remote that one
or two of the attesting witnesses may have forgotten certain details
that transpired when they attested the documents in question . . .
(Rollo, pp. 36-37.)
A review of the facts and circumstances upon which respondent Court of Appeals
based its impugned finding, however, fails to convince us that the testamentary
documents in question were subscribed and attested by the instrumental witnesses
during a single occasion.
As sharply noted by respondent appellate court, the signatures of some attesting
witnesses in decedent’s will and its codicil were written in blue ink, while the others
were in black. This discrepancy was not explained by petitioner. Nobody of his six (6)
witnesses testified that two pens were used by the signatories on the two documents.
In fact, two (2) of petitioner’s witnesses even testified that only one (1) ballpen was
used in signing the two testamentary documents.
It is accepted that there are three sources from which a tribunal may properly acquire
knowledge for making its decisions, namely: circumstantial evidence, testimonial
evidence, and real evidence or autoptic proference. Wigmore explains these sources
as follows:
If, for example, it is desired to ascertain whether the accused has
lost his right hand and wears an iron hook in place of it, one source
of belief on the subject would be the testimony of a witness who
had seen the arm; in believing this testimonial evidence, there is an
inference from the human assertion to the fact asserted. A second
source of belief would be the mark left on some substance grasped
or carried by the accused; in believing this circumstantial evidence,
there is an inference from the circumstance to the thing producing
it. A third source of belief remains, namely, the inspection by the
tribunal of the accused’s arm. This source differs from the other two
in omitting any step of conscious inference or reasoning, and in
proceeding by direct self-perception, or autopsy.
It is unnecessary, for present purposes, to ask whether this is not,
after all, a third source of inference, i.e., an inference from the
impressions or perceptions of the tribunal to the objective existence
of the thing perceived. The law does not need and does not attempt
to consider theories of psychology as to the subjectivity of
knowledge or the mediateness of perception. It assumes the
objectivity of external nature; and, for the purposes of judicial
investigation, a thing perceived by the tribunal as existing does
exist.
There are indeed genuine cases of inference by the tribunal from
things perceived to other things unperceived — as, for example,
from a person’s size, complexion, and features, to his age; these
cases of a real use of inference can be later more fully
distinguished . . . But we are here concerned with nothing more
than matters directly perceived — for example, that a person is of
small height or is of dark complexion; as to such matters, the
perception by the tribunal that the person is small or large, or that
he has a dark or light complexion, is a mode of acquiring belief
which is independent of inference from either testimonial or
circumstantial evidence. It is the tribunal’s self-perception, or
autopsy, of the thing itself.
From the point of view of the litigant party furnishing this source of
belief, it may be termed Autoptic Proference. 3 (Citations omitted.)
In the case at bench, the autoptic proference contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the respondent
court, show in black and white — or more accurately, in black and blue — that more
than one pen was used by the signatories thereto. Thus, it was not erroneous nor
baseless for respondent court to disbelieve petitioner’s claim that both testamentary
documents in question were subscribed to in accordance with the provisions of Art.
805 of the Civil Code.
Neither did respondent court err when it did not accord great weight to the testimony
of Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the
two testamentary documents were subscribed and attested to, starting from
decedent’s thumbmarking thereof, to the alleged signing of the instrumental witnesses
thereto in consecutive order. Nonetheless, nowhere in Judge Tolete’s testimony is
there any kind of explanation for the different-colored signatures on the
testaments.
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The
Decision of respondent Court of Appeals, dated March 27, 1988, in CA-
G.R. CV No. 19071 disallowing the Last Will and Testament, and the
Codicil thereto, of the decedent Calibia Lingdan Bulanglang is
AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of these sheets is signed on the
left margin by the testatrix and the three witnesses, nor numbered by letters; and
these omissions, according to appellants' contention, are defects whereby the probate
of the will should have been denied. We are of the opinion that the will was duly
admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No. 2645
(which is the one applicable in the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any of said sheets, thereby
changing the testator's dispositions. But when these dispositions are wholly written
on only one sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be completely
purposeless. In requiring this signature on the margin, the statute took into
consideration, undoubtedly, the case of a will written on several sheets and must
have referred to the sheets which the testator and the witnesses do not have to sign at
the bottom. A different interpretation would assume that the statute requires that this
sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at the bottom
of the sheet guaranties its authenticity, another signature on its left margin would be
unneccessary; and if they do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the statute regards of such
importance the place where the testator and the witnesses must sign on the sheet that
it would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of Act
No. 2645 is to know whether any sheet of the will has been removed. But, when all
the dispositive parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although unnumbered, cannot be
hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, referring specially to the signature
of the testatrix, we can add that same is not necessary in the attestation clause because
this, as its name implies, appertains only to the witnesses and not to the testator since
the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of
which contains all the testamentary dispositions and is signed at the bottom by the
testator and three witnesses and the second contains only the attestation clause and is
signed also at the bottom by the three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal 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 frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance appearing
in the will itself that same was executed in the city of Cebu and in the dialect of this
locality where the testatrix was a neighbor is enough, in the absence of any proof to
the contrary, to presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.
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.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
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. 1äwphï1.ñët
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 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
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.

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

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.
Lee v. Tambago
544 SCRA 393
FACTS:
Complainant, Manuel L. Lee, charged respondent, Atty. Regino B.
Tambago, with violation of Notarial Law and the Ethics of the legal
profession for notarizing a will that is alleged to be spurious in nature in
containing forged signatures of his father, the decedent, Vicente Lee Sr.
and two other witnesses. 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.Complainant, however, pointed out that the residence
certificateof the testator noted in the acknowledgment of the will was
dated January 5, 1962.Furthermore, the signature of the testator was not
the same as his signature as donor in a deed of donationwhich supposedly
contained his purported signature. Complainant averred that the
signatures of his deceased father in the will and in the deed of donation
were “in any way entirely and diametrically opposed from one another in
all angle[s].”
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).
ISSUE:
Was the will spurious?
HELD:
Yes, thus Tambago violated the Notarial Law and the ethics of legal
profession.
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.
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. The will in question was
attested by only two witnesses. On this circumstance alone, the will must
be considered void. 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. 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. The acknowledgment in a notarial will
has a two-fold purpose: (1) to safeguard the testator’s 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 testator’s
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. These formalities are mandatory and cannot be disregarded.
 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]
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
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.
 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.
Vicente R. Redor for petitioner.chanrobles virtual law library
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional Trial
Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido
Alvarado.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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. 5 Petitioner, in turn, filed an Opposition on the following grounds:
that the will sought to be probated was not executed and attested as required
by law; that the testator was insane or otherwise mentally incapacitated to
make a will at the time of its execution due to senility and old age; that the
will was executed under duress, or influence of fear 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.chanroblesvirtualawlibrarychanrobles virtual law library
When the oppositor (petitioner) failed to substantiate the grounds relied
upon in the Opposition, a Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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?chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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. 8chanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles virtual law library
We agree with petitioner in this
respect.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
We sustain private respondent's stand and necessarily, the petition must be
denied.chanroblesvirtualawlibrarychanrobles virtual law library
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. 14chanrobles virtual law library
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. 15chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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. 17chanrobles
virtual law library
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:
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.chanroblesvirtualawlibrarychanrobles
virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library