1.

Wills, In general

Vitug vs. CA, G.R. No. 82027, March 29, 1990; SARMIENTO, J.

FACTS:

Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of
stock and real properties belonging to the estate to cover allegedly his advances to the estate which he
claimed were personal funds. According to Mr. Vitug, he withdrew the sums of P518,834.27 and
P90,749.99 from savings account No. 35342-038 of the Bank of America.

Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings
account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was
allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in
question for inventory and for "concealment of funds belonging to the estate."

Vitug insists that the said funds are his exclusive property having acquired the same through a
survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement
provides:

We hereby agree with each other and with the BANK OF AMERICAN NATIONAL
TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all
money now or hereafter deposited by us or any or either of us with the BANK in our
joint savings current account shall be the property of all or both of us and shall be
payable to and collectible or withdrawable by either or any of us during our lifetime, and
after the death of either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or withdrawable by such
survivor or survivors.

The Court of Appeals held that the above-quoted survivorship agreement constitutes a conveyance
mortis causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the
Civil Code," and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation
under the provisions of Article 133 of the Civil Code.

ISSUE: Whether or not the survivorship agreement constitutes a conveyance mortis causa, hence, should
comply with the formalities of a will as prescribed by Article 805?

RULING: No.

The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A
will has been defined as "a personal, solemn, revocable and free act by which a capacitated person
disposes of his property and rights and declares or complies with duties to take effect after his death."
In other words, the bequest or device must pertain to the testator. In this case, the monies subjects of
savings account No. 35342-038 were in the nature of conjugal funds. In the case relied on, Rivera v.
People's Bank and Trust Co., we rejected claims that a survivorship agreement purports to deliver one
party's separate properties in favor of the other, but simply, their joint holdings.

There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to
be conjugal, having been acquired during the existence of the marital relations.

Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take
effect after the death of one party. Secondly, it is not a donation between the spouses because it involved
no conveyance of a spouse's own properties to the other. In the case at bar, when the spouses Vitug
opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-
making venture. They did not dispose of it in favor of the other, which would have arguably been
sanctionable as a prohibited donation. And since the funds were conjugal, it cannot be said that one
spouse could have pressured the other in placing his or her deposits in the money pool.

The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that
contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by
the Civil Code.

But although the survivorship agreement is per se not contrary to law its operation or effect may be
violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to
hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced
heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established
against the agreement involved in this case.
There is no demonstration here that the survivorship agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and
conjugal partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter
has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the
Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by
Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no
more part of the estate of the deceased.

Aluad, et al. Vs. Aluad, G.R. No. 176943, October 17, 2008; CARPIO MORALES, J.

FACTS:

Petitioners’ mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless
spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).

Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar
Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself.

On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter
Vivos" (Deed of Donation) in favor of Maria covering all the six lots which Matilde inherited from her
husband Crispin. The Deed of Donation provided:

That, for and in consideration of the love and affection of the DONOR [Matilde] for the
DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former
the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon the death of the
DONOR, but in the event that the DONEE should die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect; Provided,
however, that anytime during the lifetime of the DONOR or anyone of them who
should survive, they could use[,] encumber or even dispose of any or even all of the
parcels of land herein donated.

On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde’s
name.

On August 26, 1991, Matilde sold Lot No. 676 to Respondent by a Deed of Absolute Sale of Real Property.

Subsequently or on January 14, 1992, Matilde executed a last will and testament, devising Lot Nos. 675,
677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to Respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the same year.

On August 21, 1995, Maria’s heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas
City a Complaint, for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent.

The Court of Appeals reversed the trial court’s decision, it holding that the Deed of Donation was
actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the
formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and
had no attestation clause which is not in accordance with Article 805 of the Civil Code.

ISSUE: Whether or not the Deed of Donation Inter Vivos in favour of Maria is in fact a donation mortis
causa?

RULING: Yes.

The Court finds the donation to petitioners’ mother one of mortis causa, it having the following
characteristics:

(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts
to the same thing, that the transferor should retain the ownership (full or naked) and control of the
property while alive;
(2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the transferee.27 (Emphasis and
underscoring supplied)

The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR"
admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of
the six lots to petitioners’ mother during her (Matilde’s) lifetime.

The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of
them who should survive, they could use, encumber or even dispose of any or even all the parcels of land
herein donated" means that Matilde retained ownership of the lots and reserved in her the right to
dispose them. For the right to dispose of a thing without other limitations than those established by law is
an attribute of ownership. The phrase in the Deed of Donation "or anyone of them who should survive" is
of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of
the donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves
concede that such phrase does not refer to the donee.

As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matilde’s acts
of possession as she continued to pay the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which OCTs were issued under her name."

The donation being then mortis causa, the formalities of a will should have been observed but they were
not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.
Further, the witnesses did not even sign the attestation clause the execution of which clause is a
requirement separate from the subscription of the will and the affixing of signatures on the left-hand
margins of the pages of the will. So the Court has emphasized:

x x x Article 805 particularly segregates the requirement that the instrumental witnesses
sign each page of the will from the requisite that the will be "attested and subscribed by
[the instrumental witnesses]. The respective intents behind these two classes of
signature[s] are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing
forms part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’ undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different
avowal.

It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages
used upon which the will is written; the fact that the testator had signed the will and every page thereof;
and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another. The only proof in the will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.

Furthermore, the witnesses did not acknowledge the will before the notary public, which is not in
accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged
before a notary public by the testator and the witnesses.

The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the
formalities of a will, it is void and transmitted no right to Maria. But even assuming arguendo that the
formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria. Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject
of course to the qualification that her (Matilde’s) will must be probated. With respect to Lot No. 676, the
same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.

2. Construction and Interpretation of Wills

Rabadilla vs. CA et al., G.R. No. 113725, June 29, 2000; PURISIMA, J.

FACTS:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,
855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said
Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of
First Instance of Negros Occidental, contained the following provisions:

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge
Rabadilla shall have already received the ownership of the said Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also
at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge
Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina
Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the
obligation to still give yearly, the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on the month of December of each
year.

SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one
to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said
Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver
yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on
each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command in this my addition (Codicil),
Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my
heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter
shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until
Maria Marlina shall die. I further command in this my addition (Codicil) that my heir
and his heirs of this Lot No. 1392, that they will obey and follow that should they decide
to sell, lease, mortgage, they cannot negotiate with others than my near descendants and
my sister."

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner),
Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint against the
heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the
defendant-heirs violated the conditions of the Codicil. The plaintiff then prayed that judgment be
rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late
Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the
issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.

Petitioner found his way to this Court via the present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of
paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a
modal institution within the purview of Article 882 of the New Civil Code.

ISSUES:

1. Does private respondent have a cause of action against Petitioner?

2. Whether or not the testatrix intended a mere simple substitution – i.e. Dr. Jorge Rabadilla was to
be substituted by the testatrix's near descendants should there be noncompliance with the
obligation to deliver the piculs of sugar to private respondent?
3. Whether or not the private respondent has only a right of usufruct but not the right to seize the
property itself from the instituted heir because the right to seize was expressly limited to
violations by the buyer, lessee or mortgagee.
RULING:

1. It is a general rule under the law on succession that successional rights are transmitted from the
moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The
legitimate children and descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of
the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of
further proceedings, and the successional rights were transmitted to them from the moment of death
of the decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations
of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by
virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the decedent; corollarily, the
obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to
his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the
condition that the usufruct thereof would be delivered to the herein private respondent every year.
Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the
said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot
involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds
to the right of private respondent over the usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of the case at bar. Therefore, private respondent
has a cause of action against petitioner and the trial court erred in dismissing the complaint below.

2. Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable
because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by
the testatrix's near descendants should there be noncompliance with the obligation to deliver the
piculs of sugar to private respondent.

Substitution is the designation by the testator of a person or persons to take the place of the heir or
heirs first instituted. Under substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, or
(2) leave his/her property to one person with the express charge that it be transmitted subsequently
to another or others, as in a fideicommissary substitution. The Codicil sued upon contemplates
neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation. In the case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that,
should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property
referred to shall be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a
fideicommissary substitution, the first heir is strictly mandated to preserve the property and to
transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation is with the near
descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to preserve clearly imposed
by the testator in his will, there is no fideicommissary substitution." Also, the near descendants' right
to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under Article 863,
the second heir or the fideicommissary to whom the property is transmitted must not be beyond one
degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first
heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants
are not at all related to the instituted heir, Dr. Jorge Rabadilla.
 The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject
Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the
provision of law in point. Articles 882 and 883 of the New Civil Code provide:

Art. 882. The statement of the object of the institution or the application of the property left
by the testator, or the charge imposed on him, shall not be considered as a condition unless it
appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes of the testator and for the return of anything he
or they may receive, together with its fruits and interests, if he or they should disregard this
obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator states
(1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3)
the charge imposed by the testator upon the heir.18 A "mode" imposes an obligation upon the heir or
legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a
conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends but does not obligate; and the mode
obligates but does not suspend. To some extent, it is similar to a resolutory condition.

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix
intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that
the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver
one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during
the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the
effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is
clear, though, that should the obligation be not complied with, the property shall be turned over to
the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject
Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon
the heir should not be considered a condition unless it clearly appears from the Will itself that such
was the intention of the testator. In case of doubt, the institution should be considered as modal and
not conditional.

3. Neither is there tenability in the other contention of petitioner that the private respondent has
only a right of usufruct but not the right to seize the property itself from the instituted heir
because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the
application of any of its provisions, the testator's intention is to be ascertained from the words of
the Will, taking into consideration the circumstances under which it was made. Such construction
as will sustain and uphold the Will in all its parts must be adopted.

Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100)
piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir,
Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage
or otherwise negotiate the property involved. The Codicil further provides that in the event that the
obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property
and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus
with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants.
Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also
on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of
said obligation should equally apply to the instituted heir and his successors-in-interest.

SEANGIO et al. vs. Reyes et al., G.R. Nos. 140371-72, November 27, 2006; AZCUNA, J.

FACTS:
On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the
late Segundo Seangio, and praying for the appointment of private respondent Elisa D. Seangio–Santos as
special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition, contending
among others that Segundo left a holographic will, dated September 20, 1995, disinheriting one of the
private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners
averred that the intestate proceedings must be automatically suspended and replaced by the proceedings
for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo was filed by petitioners
before the RTC. They likewise reiterated that the probate proceedings should take precedence over the
intestate proceedings.

On July 1, 1999, private respondents moved for the dismissal of the probate proceedings primarily on the
ground that the document purporting to be the holographic will of Segundo does not contain any
disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783
of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance
by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not
named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to
intestacy. Such being the case, private respondents maintained that while procedurally the court is called
upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic
validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it
is clear that it contains no testamentary disposition of the property of the decedent.

Petitioners on the other hand argue that holographic will does not contain any institution of an heir, but
rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a
compulsory heir, thus, there is no preterition in the decedent’s will and the holographic will on its face is
not intrinsically void; and the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs
in the direct line of Segundo were preterited in the holographic will since there was no institution of an
heir;

ISSUES:

(1) Was there a valid disinheritance?

(2) Whether the document executed by Segundo can be considered as a holographic will

(3) Was there a preterition?

RULING:

1. The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo’s intention
of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In
effect, Alfredo was disinherited by Segundo.

2. Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by
the hand of Segundo himself. An intent to dispose mortis causa can be clearly deduced from the
terms of the instrument, and while it does not make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the property of the testator Segundo in favor
of those who would succeed in the absence of Alfredo.

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the
form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention. It is
only when the intention of the testator is contrary to law, morals, or public policy that it cannot be
given effect.
 Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and the
intention of the testator. In this regard, the Court is convinced that the document, even if captioned
as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless the will is probated,
the disinheritance cannot be given effect.

3. With regard to the issue on preterition, the Court believes that the compulsory heirs in the direct line
were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to
bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo
did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name
of one of the petitioners, Virginia, in the document did not operate to institute her as the universal
heir. Her name was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code
provides that no will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose
of his property may be rendered nugatory.

DIZON-RIVERA vs. DIZON et al., G.R. No. L-24561, June 30, 1970; TEEHANKEE, J.

FACTS:

On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga, and was
survived by seven compulsory heirs, to wit, six legitimate children named Estela Dizon, Tomas V. Dizon,
Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina Dizon and Josefina Dizon, and a
legitimate granddaughter named Lilia Dizon, who is the only legitimate child and heir of Ramon Dizon, a
pre-deceased legitimate son of the said decedent. Six of these seven compulsory heirs (except Marina
Dizon, the executrix-appellee) are the oppositors-appellants.

The deceased testatrix left a last will executed on February 2, 1960 and written in the Pampango dialect.
Named beneficiaries in her will were the above-named compulsory heirs, together with seven other
legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia, Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Jolly Jimenez and Laureano Tiambon.

In her will, the testatrix divided, distributed and disposed of all her properties appraised at P1,801,960.00
(except two small parcels of land appraised at P5,849.60, household furniture valued at P2,500.00, a bank
deposit in the sum of P409.95 and ten shares of Pampanga Sugar Development Company valued at
P350.00) among her above-named heirs.

The real and personal properties of the testatrix at the time of her death thus had a total appraised value
of P1,811,695.60, and the legitime of each of the seven compulsory heirs amounted to P129,362.11.3.

In her will, the testatrix "commanded that her property be divided" in accordance with her testamentary
disposition, whereby she devised and bequeathed specific real properties comprising practically the
entire bulk of her estate among her six children and eight grandchildren. The appraised values of the real
properties thus respectively devised by the testatrix to the beneficiaries named in her will, are as follows:

1. Estela Dizon ....................................... P 98,474.80

2. Angelina Dizon .................................. 106,307.06

3. Bernardita Dizon .................................. 51,968.17

4. Josefina Dizon ...................................... 52,056.39

5. Tomas Dizon ....................................... 131,987.41

6. Lilia Dizon .............................................. 72,182.47

7. Marina Dizon ..................................... 1,148,063.71

8. Pablo Rivera, Jr. ...................................... 69,280.00

9. Lilia Dizon, Gilbert Garcia,

Cayetano Dizon, Francisco Rivera,

Agripina Ayson, Dioli or Jolly

Jimenez, Laureano Tiamzon ................. 72,540.00

Total Value ...................... P1,801,960.01

The executrix filed her project of partition dated February 5, 1964, in substance adjudicating the estate as
follows:

(1) with the figure of P129,254.96 as legitime for a basis, Marina (exacultrix-appellee) and Tomas
(appellant) are admittedly considered to have received in the will more than their respective legitime,
while the rest of the appellants, namely, Estela, Bernardita, Angelina, Josefina and Lilia received less than
their respective legitime;

(2) thus, to each of the latter are adjudicated the properties respectively given them in the will, plus cash
and/or properties, to complete their respective legitimes to P129,254.96;

(3) on the other hand, Marina and Tomas are adjudicated the properties that they received in the will less
the cash and/or properties necessary to complete the prejudiced legitime mentioned in number 2 above;

(4) the adjudications made in the will in favor of the grandchildren remain untouched.

On the other hand oppositors submitted their own counter-project of partition dated February 14, 1964,
wherein they proposed the distribution of the estate on the following basis:

(a) all the testamentary dispositions were proportionally reduced to the value of one-half (½) of the entire
estate, the value of the said one-half (½) amounting to P905,534.78; (b) the shares of the Oppositors-
Appellants should consist of their legitime, plus the devises in their favor proportionally reduced; (c) in
payment of the total shares of the appellants in the entire estate, the properties devised to them plus other
properties left by the Testatrix and/or cash are adjudicated to them; and (d) to the grandchildren who are
not compulsory heirs are adjudicated the properties respectively devised to them subject to
reimbursement by Gilbert D. Garcia, et al., of the sums by which the devise in their favor should be
proportionally reduced.

Under the oppositors' counter-project of partition, the testamentary disposition made by the testatrix of
practically her whole estate of P1,801,960.01, as above stated, were proposed to be reduced to the
amounts set forth after the names of the respective heirs and devisees totalling one-half thereof, while the
other half of the estate (P905,534.78) would be deemed as constituting the legitime of the executrix-
appellee and oppositors-appellants, to be divided among them in seven equal parts of P129,362.11 as their
respective legitimes.

ISSUES:

1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of
devises imputable to the free portion of her estate, and therefore subject to reduction;

2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely
to demand completion of their legitime under Article 906 of the Civil Code; and

3. Whether the appellants may be compelled to accept payment in cash on account of their legitime,
instead of some of the real properties left by the Testatrix;

RULING:

The issues raised present a matter of determining the avowed intention of the testatrix which is "the life
and soul of a will." In consonance therewith, our Civil Code included the new provisions found in
Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in
case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and "(T)he
words of a will are to receive an interpretation which will give to every expression some effect, rather
than one which will render any of the expressions inoperative; and of two modes of interpreting a will,
that is to be preferred which will prevent intestacy."

In Villanueva vs. Juico for violation of these rules of interpretation as well as of Rule 123, Section 59 of the
old Rules of Court, the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's
decision and stressed that "the intention and wishes of the testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the
testator's words, unless it clearly appears that his intention was otherwise."

The testator's wishes and intention constitute the first and principal law in the matter of testaments, and
to paraphrase an early decision of the Supreme Court of Spain, when expressed clearly and precisely in
his last will amount to the only law whose mandate must imperatively be faithfully obeyed and complied
with by his executors, heirs and devisees and legatees, and neither these interested parties nor the courts
may substitute their own criterion for the testator's will.

Guided and restricted by these fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the nature of a
partition of her estate by will. Thus, in the third paragraph of her will, after commanding that upon her
death all her obligations as well as the expenses of her last illness and funeral and the expenses for
probate of her last will and for the administration of her property in accordance with law, be paid, she
expressly provided that "it is my wish and I command that my property be divided" in accordance with
the dispositions immediately thereafter following, whereby she specified each real property in her estate
and designated the particular heir among her seven compulsory heirs and seven other grandchildren to
whom she bequeathed the same. This was a valid partition of her estate, as contemplated and authorized
in the first paragraph of Article 1080 of the Civil Code, providing that "(S)hould a person make a partition
of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs." This right of a testator to partition his estate is subject
only to the right of compulsory heirs to their legitime. The Civil Code thus provides the safeguard for the
right of such compulsory heirs:

ART. 906. Any compulsory heir to whom the testator has left by any title less than the legitime
belonging to him may demand that the same be fully satisfied.

ART. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs
shall be reduced on petition of the same, insofar as they may be inofficious or excessive.

This was properly complied with in the executrix-appellee's project of partition, wherein the five
oppositors-appellants namely Estela, Bernardita, Angelina, Josefina and Lilia, were adjudicated the
properties respectively distributed and assigned to them by the testatrix in her will, and the differential to
complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were favored by
the testatrix and received in the partition by will more than their respective legitimes.

2. Aside from the provisions of Articles 906 and 907 above quoted, other codal provisions support the
executrix-appellee's project of partition as approved by the lower court rather than the counter-project of
partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition or
partition made by the testatrix to one-half and limit the same, which they would consider as mere devises
or legacies, to one-half of the estate as the disposable free portion, and apply the other half of the estate to
payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would amount
substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791
of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A)
partition legally made confers upon each heir the exclusive ownership of the property adjudicated to
him."

3. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the
nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her
assignment or distribution of her real properties to the respective heirs. From this erroneous premise,
they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs passes to
them by operation of law and that the testator can only dispose of the free portion, that is, the remainder
of the estate after deducting the legitime of the compulsory heirs ... and all testamentary dispositions,
either in the nature of institution of heirs or of devises or legacies, have to be taken from the remainder of
the testator's estate constituting the free portion."

Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific
properties to specific heirs cannot be considered all devises, for it clearly appear from the whole context
of the will and the disposition by the testatrix of her whole estate (save for some small properties of
little value already noted at the beginning of this opinion) that her clear intention was to partition her
whole estate through her will. The repeated use of the words "I bequeath" in her testamentary
dispositions acquire no legal significance, such as to convert the same into devises to be taken solely
from the free one-half disposable portion of the estate. Furthermore, the testatrix' intent that her
testamentary dispositions were by way of adjudications to the beneficiaries as heirs and not as mere
devisees, and that said dispositions were therefore on account of the respective legitimes of the
compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately following her
testamentary adjudications in the third paragraph in this wise: "FOURTH: I likewise command that in
case any of those I named as my heirs in this testament any of them shall die before I do, his forced heirs
under the law enforced at the time of my death shall inherit the properties I bequeath to said deceased."

Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the estate,
as contended, for the second paragraph of Article 842 of the Civil Code precisely provides that "(O)ne
who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of
this Code with regard to the legitime of said heirs." And even going by oppositors' own theory of
bequests, the second paragraph of Article 912 Civil Code covers precisely the case of the executrix-
appellee, who admittedly was favored by the testatrix with the large bulk of her estate in providing that
"(T)he devisee who is entitled to a legitime may retain the entire property, provided its value does not
exceed that of the disposable portion and of the share pertaining to him as legitime." For "diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent might as well die
intestate." Fundamentally, of course, the dispositions by the testatrix constituted a partition by will,
which by mandate of Article 1080 of the Civil Code and of the other cited codal provisions upholding the
primacy of the testator's last will and testament, have to be respected insofar as they do not prejudice the
legitime of the other compulsory heirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed subject
to collation, if the testator has not otherwise provided, but the legitime shall in any case remain
unimpaired" and invoking of the construction thereof given by some authorities that "'not deemed subject
to collation' in this article really means not imputable to or chargeable against the legitime", while it may
have some plausibility in an appropriate case, has no application in the present case. Here, we have a
case of a distribution and partition of the entire estate by the testatrix, without her having made any
previous donations during her lifetime which would require collation to determine the legitime of each
heir nor having left merely some properties by will which would call for the application of Articles 1061
to 1063 of the Civil Code on collation. The amount of the legitime of the heirs is here determined and
undisputed.

4. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues are
likewise necessarily resolved. Their right was merely to demand completion of their legitime under
Article 906 of the Civil Code and this has been complied with in the approved project of partition, and
they can no longer demand a further share from the remaining portion of the estate, as bequeathed and
partitioned by the testatrix principally to the executrix-appellee.

Neither may the appellants legally insist on their legitime being completed with real properties of the
estate instead of being paid in cash, per the approved project of partition. The properties are not available
for the purpose, as the testatrix had specifically partitioned and distributed them to her heirs, and the
heirs are called upon, as far as feasible to comply with and give effect to the intention of the testatrix as
solemnized in her will, by implementing her manifest wish of transmitting the real properties intact to
her named beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the
estate as filed by the commissioner appointed by the lower court was approved in toto upon joint petition
of the parties, and hence, there cannot be said to be any question — and none is presented — as to
fairness of the valuation thereof or that the legitime of the heirs in terms of cash has been understated.
The plaint of oppositors that the purchasing value of the Philippine peso has greatly declined since the
testatrix' death in January, 1961 provides no legal basis or justification for overturning the wishes and
intent of the testatrix. The transmission of rights to the succession are transmitted from the moment of
death of the decedent (Article 777, Civil Code) and accordingly, the value thereof must be reckoned as of
then, as otherwise, estates would never be settled if there were to be a revaluation with every subsequent
fluctuation in the values of the currency and properties of the estate. There is evidence in the record that
prior to November 25, 1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account
of her inheritance, which, per the parties' manifestation, 20 "does not in any way affect the adjudication
made to her in the projects of partition of either party as the same is a mere advance of the cash that she
should receive in both projects of partition." The payment in cash by way of making the proper
adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as to
give effect to the last will of the testatrix has invariably been availed of and sanctioned. 21 That her co-
oppositors would receive their cash differentials only now when the value of the currency has declined
further, whereas they could have received them earlier, like Bernardita, at the time of approval of the
project of partition and when the peso's purchasing value was higher, is due to their own decision of
pursuing the present appeal.

3. Governing Laws, Extrinsic validity

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA, G.R. No. L-7188, August 9,
1954; MONTEMAYOR, J.

FACTS:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document
purporting to be his Last Will and Testament. Resident of the City of Cebu, he died on January 14, 1943,
in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000
in value. On October 2, 1946, one Andres Enriquez, one of the legatees, filed a petition for its probate in
the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the
deceased if he left no will, filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without
contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in
longhand the will in Spanish which the testator spoke and understood; that he (testator) signed on the left
hand margin of the front page of each of the three folios or sheets of which the document is composed,
and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at
the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will
and that the said three witnesses signed their names on the last page after the attestation clause in his
presence and in the presence of each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the testator's
death, holographic wills were not permitted by law still, because at the time of the hearing and when the
case was to be decided the new Civil Code was already in force, which Code permitted the execution of
holographic wills, under a liberal view, and to carry out the intention of the testator which according to
the trial court is the controlling factor and may override any defect in form, said trial court by order dated
January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho
Abadia. The oppositors are appealing from that decision; and because only questions of law are involved
in the appeal, the case was certified to us by the Court of Appeals.

ISSUE: What is the law to apply to the probate of Exhibit "A" (Will)?

RULING:

The new Civil Code (Republic Act No. 386) under Article 810 thereof provides that a person may execute
a holographic will which must be entirely written, dated, and signed by the testator himself and need not
be witnessed. It is a fact, however, that at the time that the will was executed in 1923 and at the time that
Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed
certain requirements for the execution of wills, such as numbering correlatively each page (not folio or
sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses,
requirements which were not complied with in Exhibit "A" because the back pages of the first two folios
of the will were not signed by any one, not even by the testator and were not numbered, and as to the
three front pages, they were signed only by the testator.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, referring to
the failure of the testator and his witnesses to sign on the left hand margin of every page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the
signatures guaranteeing authenticity should appear upon two folios or leaves; three
pages having been written on, the authenticity of all three of them should be guaranteed
by the signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, referring to the same requirement, this Court declared:

From an examination of the document in question, it appears that the left margins of the
six pages of the document are signed only by Ventura Prieto. The noncompliance with
section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator
at the left margin of each of the five pages of the document alleged to be the will of
Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code
which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-
petitioner and applied by the lower court? But Article 795 of this same new Civil Code expressly
provides: "The validity of a will as to its form depends upon the observance of the law in force at the
time it is made." The above provision is but an expression or statement of the weight of authority to the
affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death
or at the time the supposed will is presented in court for probate or when the petition is decided by
the court but at the time the instrument was executed. One reason in support of the rule is that although
the will operates upon and after the death of the testator, the wishes of the testator about the disposition
of his estate among his heirs and among the legatees is given solemn expression at the time the will is
executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid
down by this court in the case of In re Will of Riosa. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor
and that all adequate remedies and interpretations should be resorted to in order to carry out said
intention, and that when statutes passed after the execution of the will and after the death of the testator
lessen the formalities required by law for the execution of wills, said subsequent statutes should be
applied so as to validate wills defectively executed according to the law in force at the time of execution.
However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of
the legatees and devisees under it becomes a vested right, protected under the due process clause of the
constitution against a subsequent change in the statute adding new legal requirements of execution of
wills which would invalidate such a will. By parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal requirements at the time of its execution then upon
his death he should be regarded and declared as having died intestate, and his heirs will then inherit
by intestate succession, and no subsequent law with more liberal requirements or which dispenses
with such requirements as to execution should be allowed to validate a defective will and thereby
divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the
Legislature cannot validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).

In the matter of the probation of the will of Jose Riosa, G.R. No. L-14074, November 7, 1918;
MALCOLM, J.

FACTS:

Jose Riosa died on April 17, 1917. He left a will made in the month of January, 1908, in which he disposed
of an estate valued at more than P35,000. The will was duly executed in accordance with the law then in
force, namely, Section 618 of the Code of Civil Procedure. The will was not executed in accordance with
Act No. 2645, amendatory of said Section 618, prescribing certain additional formalities for the signing
and attestation of wills, in force on and after July 1, 1916. In other words, the will was in writing, signed
by the testator, and attested and subscribed by three credible witnesses in the presence of the testator and
of each other; but was not signed by the testator and the witnesses on the left margin of each and every
page, nor did the attestation state these facts. The new law, therefore, went into effect after the making of
the will and before the death of the testator, without the testator having left a will that conforms to the
new requirements.

ISSUE: Whether the law existing on the date of the execution of a will, or the law existing at the death of
the testator, controls.

RULING:

Section 618 of the Code of Civil Procedure reads:

No will, except as provided in the preceding section, shall be valid to pass any estate, real
or personal, nor charge or affect the same, unless it be in writing and signed by the
testator, 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 each other. The attestation shall state the fact that the
testator signed the will, or caused it to be signed by some other person, at his express
direction, in the presence of three witnesses, and that they attested and subscribed it in
his presence and in the presence of each other. But the absence of such form of attestation
shall not render the will invalid if it is proven that the will was in fact signed and attested
as in this section provided.

Act No. 2645 has amended Section 618 of the Code of Civil Procedure so as to make said section read as
follows:

SEC. 618. Requisites of will. — No will, except as provided in the preceding section, shall
be valid to pass any estate, real or personal, nor charge or affect the same, unless it be
written in the language or dialect known by the testator and signed by him, or by the
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 each other. The testator or the person requested by him to
write his name and the instrumental witnesses of the will, shall also sign, as aforesaid,
 each, and every page thereof, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall state
the number of sheets or pages used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the testator and of
each other.

This court has heretofore held in a decision handed down by the Chief Justice, as to a will made after the
date Act No. 2645 went into effect, that it must comply with the provisions of this law. (Caraig vs
Tatlonghari, R. G. No. 12558, dated March 23, 1918 [not published].) The court has further held in a
decision handed down by Justice Torres, as to will executed by a testator whose death took place prior
to the operative date of Act No. 2645, that the amendatory act is inapplicable. (Bona vs. Briones, [1918],
38 Phil., 276.) The instant appeal presents an entirely different question. The will was executed prior to
the enactment of Act No. 2645 and the death occurred after the enactment of this law.

There is a clear cleavage of authority among the cases and the text-writers, as to the effect of a change in
the statutes prescribing the formalities necessary to be observed in the execution of a will, when such
change is made intermediate to the execution of a will and the death of a testator. (See generally 40 Cyc.,
1076. and any textbook on Wills, and Lane's Appeal from Probate [1889], 57 Conn., 182.) The rule laid down
by the courts in many jurisdictions is that the statutes in force at the testator's death are controlling, and that a will
not executed in conformity with such statutes is invalid, although its execution was sufficient at the time it was
made. The reasons assigned for applying the later statute are the following: "As until the death of the
testator the paper executed by him, expressing his wishes, is not a will, but a mere inchoate act which
may or may not be a will, the law in force at the testator's death applies and controls the proof of the
will." (Sutton vs. Chenault [1855], 18 Ga., 1.) Were we to accept the foregoing proposition and the reasons
assigned for it, it would logically result that the will of Jose Riosa would have to be held invalid.

The rule prevailing in many other jurisdictions is that the validity of the execution of a will must be
tested by the statutes in force at the time of its execution and that statutes subsequently enacted have
no retrospective effect. This doctrine is believed to be supported by the weight of authority. It was the
old English view; in Downs (or Downing) vs. Townsend (Ambler, 280), Lord Hardwicke is reported to
have said that "the general rule as to testaments is, that the time of the testament, and not the testator's
death, is regarded." It is also the modern view, including among other decisions one of the Supreme
Court of Vermont from which State many of the sections of the Code of Civil Procedure of the Philippine
Islands relating to wills are taken. (Giddings vs. Turgeon [1886], 58 Vt., 103.)

Of the numerous decisions of divergent tendencies, the opinion by the learned Justice Sharswood (Taylor
vs. Mitchell [1868], 57 Pa. St., 209) is regarded to be the best considered. In this opinion is found the
following:

Retrospective laws generally if not universally work injustice, and ought to be so

construed only when the mandate of the legislature is imperative. When a testator makes
a will, formally executed according to the requirements of the law existing at the time of
its execution, it would unjustly disappoint his lawful right of disposition to apply to it a
rule subsequently enacted, though before his death.

While it is true that everyone is presumed to know the law, the maxim in fact is
inapplicable to such a case; for he would have an equal right to presume that no new law
would affect his past act, and rest satisfied in security on that presumption. . . . It is true,
that every will is ambulatory until the death of the testator, and the disposition made by
it does not actually take effect until then. General words apply to the property of which
the testator dies possessed, and he retains the power of revocation as long as he lives.
The act of bequeathing or devising, however, takes place when the will is executed,
though to go into effect at a future time.

A third view, somewhat larger in conception than the preceding one, finding support in the States of
Alabama and New York, is that statutes relating to the execution of wills, when they increase the
necessary formalities, should be construed so as not to impair the validity of a will already made and,
when they lessen the formalities required, should be construed so as to aid wills defectively executed
according to the law in force at the time of their making (Hoffman vs. Hoffman, [1855], 26 Ala., 535;
Price vs. Brown, 1 Bradf., Surr. N.Y., 252.)

This court is given the opportunity to choose between the three rules above described. Our selection,
under such circumstances, should naturally depend more on reason than on technicality. Above all, we
cannot lose sight of the fact that the testator has provided in detail for the disposition of his property and
that his desires should be respected by the courts. Justice is a powerful pleader for the second and third
rules on the subject.

The plausible reasoning of the authorities which back the first proposition is, we think, fallacious. The act
of bequeathing or devising is something more than inchoate or ambulatory. In reality, it becomes a
completed act when the will is executed and attested according to the law, although it does not take effect
on the property until a future time.

It is, of course, a general rule of statutory construction, as this court has said, that "all statutes are to be
construed as having only a prospective operation unless the purpose and intention of the Legislature to
give them a retrospective effect is expressly declared or is necessarily implied from the language used. In
every case of doubt, the doubt must be resolved against the restrospective effect." (Montilla vs.
Corporacion de PP. Agustinos [1913], 24 Phil., 220. See also Chew Heong vs. U.S. [1884], 112 U.S., 536;
U.S. vs American Sugar Ref. Co. [1906], 202 U.S., 563.) Statute law, as found in the Civil Code, is
corroborative; article 3 thereof provides that "laws shall not have a retroactive effect, unless therein
otherwise prescribed." The language of Act No. 2645 gives no indication of retrospective effect. Such,
likewise, has been the uniform tendency of the Supreme Court of the Philippine Islands on cases having
special application to testamentary succession. (Abello vs. Kock de Monaterio [1904], 3 Phil., 558; Timbol
vs. Manalo [1906], 6 Phil., 254; Bona vs. Briones, supra; In the Matter of the Probation of the Will of
Bibiana Diquiña [1918], R. G. No. 13176, 1 concerning the language of the Will. See also section 617, Code
of Civil Procedure.)

The strongest argument against our accepting the first two rules comes out of section 634 of the Code of
Civil Procedure which, in negative terms, provides that a will shall be disallowed in either of five cases,
the first being "if not executed and attested as in this Act provided." Act No. 2645 has, of course, become
part and parcel of the Code of Civil Procedure. The will in question is admittedly not executed and
attested as provided by the Code of Civil Procedure as amended. Nevertheless, it is proper to observe
that the general principle in the law of wills inserts itself even within the provisions of said section 634.
Our statute announces a positive rule for the transference of property which must be complied with as
completed act at the time of the execution, so far as the act of the testator is concerned, as to all testaments
made subsequent to the enactment of Act No. 2645, but is not effective as to testaments made antecedent
to that date.

To answer the question with which we began this decision, we adopt as our own the second rule,
particularly as established by the Supreme Court of Pennsylvania. The will of Jose Riosa is valid.

Governing law, Intrinsic Validity

MICIANO vs. BRIMO, G.R. No. L-22595, November 1, 1927; ROMUALDEZ, J.

FACTS:

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The court, however, approved it.

The appellant's opposition is based on the fact that the partition in question puts into effect the
provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or article 10 of the Civil Code
which, among other things, provides that the legal and testamentary successions, in respect to
the order of succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions shall be regulated by the national law of the person whose
succession is in question, whatever may be the nature of the property or the country in which it
may be situated.

ISSUE: Whether or not a provision in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his national law is valid

RULING:
With respect to the exclusion of the appellant as a legatee, inasmuch as he is one of the persons
designated as such in will, it must be taken into consideration that such exclusion is based on
the last part of the second clause of the will, which says:

Second. I like desire to state that although by law, I am a Turkish citizen... it is

my wish that the distribution of my property and everything in connection
with this, my will, be made and disposed of in accordance with the laws in
force in the Philippine islands, requesting all of my relatives to respect this
wish, otherwise, I annul and cancel beforehand whatever disposition found in
this will favorable to the person or persons who fail to comply with this
request.

The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with the
laws of his nationality, but in accordance with the laws of the Philippines. If this condition as
it is expressed were legal and valid, any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for Article 792 of the
Civil Code provides, among others, that conditions that are contrary to law shall be considered
as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even
should the testator otherwise provide.

And said condition is contrary to law because it expressly ignores the testator's national law
when, according to Article 10 of the Civil Code, such national law of the testator is the one to
govern his testamentary dispositions. Applying Article 792, said condition then is considered
unwritten, and the institution of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern
it, and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly
valid and effective it not appearing that said clauses are contrary to the testator's national
law.

TESTATE ESTATE OF AMOS G. BELLIS, G.R. No. L-23678, June 6, 1967; BENGZON, J.P., J.

FACTS:

On August 5, 1952, Amos G. Bellis, a citizen of the State of Texas and of the United States,
executed a will in the Philippines, in which he directed that after all taxes, obligations, and
expenses of administration are paid for, his distributable estate should be divided, in trust, in
the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00
to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or
P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go
to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry
A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and
Dorothy E. Bellis, in equal shares.

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A.
His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.

On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
oppositions to the project of partition on the ground that they were deprived of their legitimes
as illegitimate children and, therefore, compulsory heirs of the deceased.

ISSUE: Which law must apply — Texas law or Philippine law?

RULING:
Article 16, par. 2, and Article 1039 of the Civil Code, render applicable the national law of the
decedent, in intestate or testamentary successions, with regard to four items: (a) the order of
succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of
the will; and (d) the capacity to succeed.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code prevails as
the exception to Art. 16, par. 2 of the Civil Code.

This is not correct. It must have been the Congress’ purpose to make the second paragraph of
Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As
further indication of this legislative intent, Congress added a new provision, under Art. 1039,
which decrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our
System of legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific provisions must prevail over
general ones.

Appellants would also point out that the decedent executed two wills — one to govern his
Texas estate and the other his Philippine estate — arguing from this that he intended Philippine
law to govern his Philippine estate. Assuming that such was the decedent's intention in
executing a separate Philippine will, it would not alter the law, for as this Court ruled in
Miciano v. Brimo, a provision in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his national law, is illegal and
void, for his national law cannot be ignored in regard to those matters that Article 10 — now
Article 16 — of the Civil Code states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the amount of successional rights
are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the
testacy of Amos G. Bellis.

JIMENEZ vs FERNANDEZ, G.R. No. L-46364, April 6, 1990; PARAS, J.

FACTS:

The entire parcel of land with an area of 2,932 square meters, formerly belonged to Fermin
Jimenez. Fermin Jimenez has two (2) sons named Fortunato and Carlos Jimenez. This Fortunato
Jimenez who predeceased his father has only one child, the petitioner Sulpicia Jimenez. After
the death of Fermin Jimenez, the entire parcel of land was registered in the name of Carlos
Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso. An Original
Certificate of Title was issued in the names of Carlos Jimenez and Sulpicia Jimenez, in equal
shares pro-indiviso.

Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also
known as Melecia Jimenez, took possession of the eastern portion of the property consisting of
436 square meters.

On January 20, 1944, Melecia Jimenez sold said 436 square meter-portion of the property to
Edilberto Cagampan and defendant Teodora Grado executed a contract entitled "Exchange of
Real Properties" whereby the former transferred said 436 square meter-portion to the latter,
who has been in occupation since.

On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit adjudicating unto herself
the other half of the property appertaining to Carlos Jimenez, upon manifestation that she is the
only heir of her deceased uncle. Consequently TCT No. 82275 was issued on October 1, 1969 in
Sulpicia 's name alone over the entire 2,932 square meter property.

On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted the present action for the
recovery of the eastern portion of the property consisting of 436 square meters occupied by
defendant Teodora Grado and her son.

ISSUE: Which law must apply — the Civil Code of 1889 or the Civil Code of the Philippines, in
determining whether Melecia Jimenez is entitled to any successional rights in so far as the estate of
Carlos Jimenez was concerned.

RULING:

From the start the respondent court erred in not declaring that Melecia Jimenez Cayabyab also
known as Melecia Jimenez, is not the daughter of Carlos Jimenez and therefore, had no right
over the property in question. Respondents failed to present concrete evidence to prove that
Melecia Cayabyab was really the daughter of Carlos Jimenez.

Nonetheless, assuming arguendo that Melecia Cayabyab was the illegitimate daughter of Carlos
Jimenez, Melecia Cayabyab had no right to succeed to the estate of Carlos Jimenez and could
not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the
property subject of this petition.

Art. 2263 of the Civil Code provides that rights to the inheritance of a person who died with or
without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court.

Since Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of land died on
July 9, 1936, way before the effectivity of the Civil Code of the Philippines, the successional
rights pertaining to his estate must be determined in accordance with the Civil Code of 1889.

Citing the case of Cid v. Burnaman wherein this Court categorically held that to be an heir under
the rules of Civil Code of 1889, the law in force when Carlos Jimenez died and which should be
the governing law in so far as the right to inherit from his estate was concerned, a child must be
either a child legitimate, legitimated, or adopted, or else an acknowledged natural child — for
illegitimate not natural are disqualified to inherit. (Civil Code of 1889, Art. 807, 935)

Even assuming that Melecia Cayabyab was born out of the common-law-relationship between
her mother (Maria Cayabyab) and Carlos Jimenez, she could not even be considered an
acknowledged natural child because Carlos Jimenez was then legally married to Susana
Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia
Cayabyab was an illegitimate spurious child and not entitled to any successional rights in so
far as the estate of Carlos Jimenez was concerned.

CAYETANO vs. LEONIDAS G.R. No. L-54919 May 30, 1984; GUTIERREZ, JR., J.

FACTS:

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta
C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate
of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States
and for her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death
and was a permanent resident of Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister in Malate, Manila; that during her
lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of
Pennsylvania, U.S.A.; that after the testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins at the County of Philadelphia,
U.S.A.; and that therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner
alleging among other things, that he has every reason to believe that the will in question is a
forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they
would work injustice and injury to him.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which,
incidentally has been questioned by the respondent, his children and forced heirs as, on its face,
patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last
will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the
instant case which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes
Campos merged upon his death with the rights of the respondent and her sisters, only
remaining children and forced heirs was denied on September 12, 1983.

ISSUE: Which law must apply — Pennsylvania law or Philippine law?

RULING:

The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due execution
thereof, the testatrix's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after
the court has declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue.

In the case at bar, the petitioner maintains that since the respondent judge allowed the
reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was
reserved by the law for him.

Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of her death, an American citizen and
a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par.
(2) and 1039 of the Civil Code, the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.

Although the parties admit that the Pennsylvania law does not provide for legitimes and that all
the estate may be given away by the testatrix to a complete stranger, the petitioner argues that
such law should not apply because it would be contrary to the sound and established public policy and
would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided
for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply.
This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be

involved in our system of legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has specifically chosen to leave,
inter alia, the amount of successional rights, to the decedent's national law.
Specific provisions must prevail over general ones.

xxx xxx xxx

 The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under Texas law, the
Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis.

4. Testamentary Capacity and Intent

BAGTAS vs. PAGUIO, ET AL., G.R. No. L-6801, March 14, 1912; TRENT, J.

FACTS:

This is an appeal from an order of the Court of First Instance of the Province of Bataan,
admitting to probate a document which was offered as the last will and testament of Pioquinto
Paguio y Pizarro. The will purports to have been executed in the pueblo of Pilar, Province of
Bataan, on the 19th day of April, 1908. The testator died on the 28th of September, 1909, a year
and five months following the date of the execution of the will. The will was propounded by the
executrix, Juliana Bagtas, widow of the decedent, and the opponents are a son and several
grandchildren by a former marriage, the latter being the children of a deceased daughter.

The basis of the opposition to the probation of the will is that the same was not executed
according to the formalities and requirements of the law touching wills, and further that the
testator was not in the full of enjoyment and use of his mental faculties and was without the
mental capacity necessary to execute a valid will.

The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to
the time of his death suffered from a paralysis of the left side of his body; that a few years prior
to his death his hearing became impaired and that he lost the power of speech. Owing to the
paralysis of certain muscles his head fell to one side, and saliva ran from his mouth. He retained
the use of his right hand, however, and was able to write fairly well. Through the medium of
signs he was able to indicate his wishes to his wife and to other members of his family.

At the time of the execution of the will there were present the four testamentary witnesses,
Agustin Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Señor Marco, and one
Florentino Ramos. Anacleto Paguio and the attorney have since died, and consequently their
testimony was not available upon the trial of the case in the lower court. The other three
testamentary witnesses and the witness Florentino Ramos testified as to the manner in which
the will was executed.

ISSUE:

RULING:

This brings us now to a consideration of appellants' second assignment of error, viz, the
testator's alleged mental incapacity at the time of the execution of the will.

Upon this point considerable evidence was adduced at the trial. One of the attesting witnesses
testified that at the time of the execution of the will the testator was in his right mind, and that
although he was seriously ill, he indicated by movements of his head what his wishes were.
Another of the attesting witnesses stated that he was not able to say whether decedent had the
full use of his mental faculties or not, because he had been ill for some years, and that he (the
witnesses) was not a physician. The other subscribing witness, Pedro Paguio, testified in the
lower court as a witness for the opponents. He was unable to state whether or not the will was
the wish of the testator. The only reasons he gave for his statement were the infirmity and
advanced age of the testator and the fact that he was unable to speak. The witness stated that
the testator signed the will, and he verified his own signature as a subscribing witness.

Florentino Ramos, although not an attesting witness, stated that he was present when the will
was executed and his testimony was cumulative in corroboration of the manner in which the
will was executed and as to the fact that the testator signed the will. This witness also stated that
he had frequently transacted matters of business for the decedent and had written letters and
made inventories of his property at his request, and that immediately before and after the
execution of the will he had performed offices of his character. He stated that the decedent was
able to communicate his thoughts by writing. The testimony of this witness clearly indicates the
presence of mental capacity on the part of the testator.

Among other witnesses for the opponents were two physicians, Doctor Basa and Doctor Viado.
Doctor Basa testified that he had attended the testator some four or five years prior to his death
and that the latter had suffered from a cerebral congestion from which the paralysis resulted.

The substance of Dr. Basa’s testimony is that the testator had suffered a paralysis and that he
had noticed some mental disorder. He does not say that the testator was not in his right mind at
the time of the execution of the will, nor does he give it at his opinion that he was without the
necessary mental capacity to make a valid will. He did not state in what way this mental
disorder had manifested itself other than that he had noticed that the testator did not reply to
him on one occasion when he visited him.

Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a
hypothetical question as to what be the mental condition of a person who was 79 years old and
who had suffered from a malady such as the testator was supposed to have had according to
the testimony of Doctor Basa, whose testimony Doctor Viado had heard. He replied and
discussed at some length the symptoms and consequences of the decrease from which the
testator had suffered; he read in support of his statements from a work by a German Physician,
Dr. Herman Eichost. In answer, however, to a direct question, he stated that he would be unable
to certify to the mental condition of a person who was suffering from such a disease.

We do not think that the testimony of these two physicians in any way strengthens the
contention of the appellants. Their testimony only confirms the fact that the testator had been
for a number of years prior to his death afflicted with paralysis, in consequence of which his
physician and mental strength was greatly impaired. Neither of them attempted to state what
was the mental condition of the testator at the time he executed the will in question. There
can be no doubt that the testator's infirmities were of a very serious character, and it is quite
evident that his mind was not as active as it had been in the earlier years of his life. However,
we cannot include from this that he wanting in the necessary mental capacity to dispose of his
property by will.

The courts have been called upon frequently to nullify wills executed under such circumstances,
but the weight of the authority is in support of the principle that it is only when those seeking
to overthrow the will have clearly established the charge of mental incapacity that the courts
will intervene to set aside a testamentary document of this character. In the case of Bugnao vs.
Ubag (14 Phil. Rep., 163), the question of testamentary capacity was discussed by this court. The
numerous citations there given from the decisions of the United States courts are especially
applicable to the case at bar and have our approval. In this jurisdiction the presumption of law
is in favor of the mental capacity of the testator and the burden is upon the contestants of the
will to prove the lack of testamentary capacity.

The rule of law relating to the presumption of mental soundness is well established, and the
testator in the case at bar never having been adjudged insane by a court of competent
jurisdiction, this presumption continues, and it is therefore incumbent upon the opponents
to overcome this legal presumption by proper evidence. This we think they have failed to do.
There are many cases and authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by age and disease do not
render a person incapable of making a will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard, few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and legal, are
universal in statement that the question of mental capacity is one of degree, and that there are
many gradations from the highest degree of mental soundness to the lowest conditions of
diseased mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should not be nullified unless mental incapacity
is established in a positive and conclusive manner

In note, 1 Jarman on Wills, 38, the rule is thus stated:

The question is not so much that was the degree of memory possessed by the
testator, as, had he a disposing memory? Was he able to remember the property
he was about to bequeath, the manner of disturbing it, and the objects of his
bounty? In a word, were his mind and memory sufficiently sound to enable him
to know and understand the business in which he was engaged at the time when
he executed his will. (See authorities there cited.)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case:
The testator died at the age of nearly 102 years. In his early years he was an intelligent and well
informed man. About seven years prior to his death he suffered a paralytic stroke and from that
time his mind and memory were mush enfeebled. He became very dull of hearing and in
consequence of the shrinking of his brain he was affected with senile cataract causing total
blindness. He became filthy and obscene in his habits, although formerly he was observant of
the properties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect
the capacity to make a will, if sufficient intelligence remains. ...

xxx xxx xxx

Dougal (the testator) had lived over one hundred years before he made the will,
and his physical and mental weakness and defective memory were in striking
contrast with their strength in the meridian of his life. He was blind; not deaf, but
hearing impaired; his mind acted slowly, he was forgetful or recent events,
especially of names, and repeated questions in conversation; and sometimes,
when aroused for sleep or slumber, would seem bewildered. It is not singular
that some of those who had known him when he was remarkable for vigor and
intelligence, are of the opinion that his reason was so far gone that he was
incapable of making a will, although they never heard him utter an irrational
expression.

In the above case the will was sustained. In the case at bar we might draw the same contrast as
was pictured by the court in the case just quoted. The striking change in the physical and mental
vigor of the testator during the last years of his life may have led some of those who knew him in his
earlier days to entertain doubts as to his mental capacity to make a will, yet we think that the statements
of the witnesses to the execution of the will and statements of the conduct of the testator at that time all
indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the
time of the execution of the will it does not appear that his conduct was irrational in any
particular. He seems to have comprehended clearly what the nature of the business was in
which he was engaged. The evidence show that the writing and execution of the will occupied a
period several hours and that the testator was present during all this time, taking an active part
in all the proceedings. Again, the will in the case at bar is perfectly reasonable and its
dispositions are those of a rational person.

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special
administrator, and LUZ LOPEZ DE BUENO vs. Lopez, G.R. No. L-25966, November 1, 1926,
STREET, J.

FACTS:

On January 3, 1924, Tomas Rodriguez executed his last will and testament, in the second clause
of which he declared:
 I institute as the only and universal heirs to all my property, my cousin Vicente
F. Lopez and his daughter Luz Lopez de Bueno.

Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially
declared incapable of taking care of himself and had been placed under the care of his cousin
Vicente F. Lopez, as guardian.

On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F.
Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter.

At the time the will was made Vicente F. Lopez had not presented his final accounts as
guardian, and no such accounts had been presented by him at the time of his death. Margarita
Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having
been contested, has been admitted to probate by judicial determination.

ISSUE:

RULING:

Our discussion of the legal problem presented should begin with article 753 of the Civil Code
which in effect declares that, with certain exceptions in favor of near relatives, no testamentary
provision shall be valid when made by a ward in favor of his guardian before the final accounts
of the latter have been approved. This provision is of undoubted application to the situation
before us; and the provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez
was not any general incapacity on his part, but a special incapacity due to the accidental relation
of guardian and ward existing between the parties.

We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared,
in effect, that accretion take place in a testamentary succession, first when the two or more
persons are called to the same inheritance or the same portion thereof without special
designation of shares; and secondly, when one of the persons so called dies before the testator
or renounces the inheritance or is disqualified to receive it.

Here, we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the
same inheritance without special designation of shares. In addition to this, one of the persons
named as heir has predeceased the testator, this person being also disqualified to receive the
estate even if he had been alive at the time of the testator's death. This article (982) is therefore
also of exact application to the case in hand; and its effect is to give to the survivor, Luz Lopez
de Bueno, not only the undivided half which she would have received in conjunction with her
father if he had been alive and qualified to take, but also the half which pertained to him. There
was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de Bueno
entitled to the whole estate.

The argument in favor of the appellant supposes that there has supervened a partial intestacy with
respect to the half of the estate which was intended for Vicente F. Lopez and that this half has descended
to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection
attention is directed to article 764 of the Civil Code wherein it is declared, among other things,
that a will may be valid even though the person instituted as heir is disqualified to inherit. Our
attention is next invited to article 912 wherein it is declared, among other things, that legal
succession takes place if the heir dies before the testator and also when the heir instituted is disqualified to
succeed. Upon these provisions an argument is planted conducting to the conclusion that the will
of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named as heirs in the
will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the share of
said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has the better
right. In playing the provisions of the Code it is the duty of the court to harmonize its
provisions as far as possible, giving due effect to all; and in case of conflict between two
provisions the more general is to be considered as being limited by the more specific. As
between articles 912 and 983, it is obvious that the former is the more general of the two,
dealing, as it does, with the general topic of intestate succession while the latter is more
specific, defining the particular conditions under which accretion takes place. In case of
conflict, therefore, the provisions of the former article must be considered limited by the latter.
Indeed, in subsection 3 of article 912 the provision with respect to intestate succession is
expressly subordinated to article 983 by the expression "and (if) there is no right of accretion." It
is true that the same express qualification is not found in subsection 4 of article 912, yet it must
be so understood, in view of the rule of interpretation above referred to, by which the more
specific is held to control the general. Besides, this interpretation supplies the only possible
means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code
affords independent proof that intestate succession to a vacant portion can only occur when
accretion is impossible.

The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912,
intestate succession occurs when the heir instituted is disqualified to succeed (incapaz de
suceder), while, under the last provision in paragraph 2 of article 982, accretion occurs when
one of the persons called to inherit under the will is disqualified to receive the inheritance
(incapaz de recibirla). A distinction is then drawn between incapacity to succeed and
incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to
bring the case under article 912 rather than 982.

We are of the opinion that the case cannot be made to turn upon so refined an interpretation of
the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject
was not a general disability to succeed but an accidental incapacity to receive the legacy, a
consideration which makes a case for accretion rather than for intestate succession.

In conclusion it may be worth observing that there has always existed both in the civil and in
the common law a certain legal intendment, amounting to a mild presumption, against partial
intestacy. In Roman law, as is well known, partial testacy systems a presumption against it— a
presumption which has its basis in the supposed intention of the testator.

In re will of the late Matea Abella. MONS. SANTIAGO SANCHO vs. Marciano Abella, G.R.
No. L-39033, November 13, 1933, VILLA-REAL, J.

FACTS:

On or about April 26, 1932, Matea Abella ordered a sexton of the convent to call Attorney
Teodoro R. Reinoso to whom she expressed her desire to make a will, in the presence of the
Father Cordero's sister, Father Zoilo Aguda, Macario Calug and the fiscal of the convent.
Inasmuch as the aforesaid attorney had to attend to other business, he could not finish his
interview with the testatrix on the first day and had to continue it the following day, also in the
presence of Father Cordero, his sister, Filomena Inay and some children who were then at the
convent. Inasmuch as he did not finish the interview on the second day, the said attorney
returned again on the afternoon of the 28th and continued it in the presence of the same persons
who entered and left the sala. At the end of the interview, Matea Abella ordered her niece,
Filomena Inay, to bring her some papers which were in her trunk, which she delivered to the
said attorney. After the will had been drafted in Ilocano, the dialect of the testatrix, Macario
Calug read it to her and she approved it. When the will had been copied clean, it was again read
to the testatrix and she express her approval thereof, but inasmuch as it was rather late at night,
she did not care to sign the same suggesting that it be postponed to the following day, April 29,
1932, which was done. At about 7:30 o'clock on the morning of April 29, 1932, the signing of the
will took place in the corridor of the convent. The testatrix Matea Abella was the first to sign it
on a table in the presence of each and every one of the instrumental witnesses thereto and of
other persons, including Father Cordero. After the testatrix, each of the instrument witnesses
signed in the presence of the testatrix and of each and every one of the other witnesses. After
the will had been signed, Attorney Teodoro R. Reinoso delivered the original and the copies
thereof to the testatrix, retaining one for his file.

On July 3, 1932, Matea Abella died of the senile debility in the municipality of Sinait at the age of 88
years.
The opponent herein attempted to prove that the testatrix was deaf and that her eyesight was
defective; that when one moved away from her and again approached her she was unable to
recognize him; that it was necessary to shout into her ear to call her for meals; that she used to
urinate on her clothes without being aware of it; that she had a very poor memory inasmuch as
she used to try to collect from her debtors in spite of the fact that they had already paid their
debts; that once, although she had sold a parcel of land for P60 she said she had sold it for P160;
that she was unable to go downstairs without assistance; that when she was called at mealtime
she used to answer: "Why, I have already eaten"; that she could not remember her properties
nor the names of her tenants; that she could no longer read; that she often repeated to her
tenants the same questions regarding their crops; that she had been suffering from the
disabilities for more than two months previous to her death; that the deceased complained of
headache and of stomachache; that she already began to be dotty five years before, and
particularly a few days previous to her death; that in her will she bequeathed properties which
she had already donated to other persons.

ISSUE: Whether Matea Abella was in the full enjoyment of her mental faculties and executed the
document, Exhibit A, as a true expression of her last will

RULING:

We are face to face with two divergent theories regarding the mental state of the testatrix Matea
Abella at the time of the execution of her will, Exhibit A.

The opponent claims that, inasmuch as the testatrix was 88 years of age when she made her
will, she was already suffering from senile debility and therefore her mental faculties were not
functioning normally anymore and that she was not fully aware of her acts. As an indication of
her senile debility, she attempted to prove that the testatrix had very poor memory in
connection with her properties and interest; that she could not go downstairs without
assistance, and that she could not recall her recent acts.

On the other hand, as to the mental sanity of the testatrix at the time of the execution of her will,
we have the undisputed fact of her having left her home in Sinait, Ilocos Sur, on April 13, 1932, in order
to go to San Fernando, La Union, to consult Dr. Antonio Querol — of whose ability she had heard so
much — regarding her headaches and stomach trouble, stopping at the convent of the parish church; the
fact of her having walked twice to the aforesaid doctor's clinic, accompanied by her niece, Filomena Inay;
the fact that she had personally furnished the aforesaid doctor with all the necessary data regarding the
history of her illness the fact of her having brought with her in her trunk the deeds to her properties; the
fact of her having called for Attorney Teodoro R. Reinoso; the fact of her having personally furnished said
attorney all the data she wished to embody in her relative to her properties and the persons in whose favor
she wished to bequeath them; the fact of her not wishing to sign her will on the night of April 28, 1932,
but the following day, in order to be able to see it better, and the fact of her having affixed her signature,
in her own handwriting, to the original as well as to the copies of her will which consisted of nine pages.

All these data show that the testatrix was not so physically weak, nor so blind, nor so deaf,
nor so lacking in intelligence that she could not, with full understanding thereof, dispose of
her properties and make a will. Neither senile debility, nor blindness, nor deafness, nor poor
memory, is by itself sufficient to incapacitate a person for making his ill. The mere fact that
in her will Matea Abella disposed of properties, which she had already donated to other
persons at a prior date, is not an indication of mental insanity. At most it constitutes
forgetfulness or a change of mind, due to ignorance of the irrevocability of certain donations.

In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA,
petitioner-appellee, C.A. No. 4, March 21, 1946, DE JOYA, J.

FACTS:

Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed a petition for the
probate of said will.
On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco,
who had not been named as beneficiaries in said will, filed on opposition to the probate of the
said will dated November 3, 1942, alleging, among others that that at the time of the alleged
execution of the said will, the testatrix Encarnacion Neyra no longer possessed testamentary
capacity.

Subsequently, said oppositors filed a counter petition, asking for the probate of the first will
executed by Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16,
1943, the legatees Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate
on said will marked as Exhibit 16, and amended said opposition, on September 15, 1943, to
which Teodora Neyra and the others filed a reply, on September 20, 1943.

That Encarnacion Neyra, who had remained single, and who had no longer any ascendants,
executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor
of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives named Teodora
Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in
said will in favor of her only sister Trinidad Neyra, who had become her bitter enemy; that
when the said will was brought to the attention of the authorities of said Congregation, after
due deliberation and consideration, said religious organization declined the bounty offered by
Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that
in order to overcome the difficulties encountered by said religious organization in not accepting
the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that
purpose, about one week before her death, sent for one Ricardo Sikat, an attorney working in
the Law Offices of Messrs. Feria and LaO, and gave him instructions for the preparation of a
new will; that Attorney Sikat, instead of preparing a new will, in accordance with the express
instructions given by Encarnacion Neyra, merely prepared a draft in the form of a codicil,
marked as Exhibit M, amending said will, dated September 14, 1939, again naming said
religious organization, among others, as beneficiary, and said draft of a codicil was also
forwarded to the authorities of the said religious organization, for their consideration and
acceptance.

In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's
disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente
Fernandez of the Quiapo Church to make confession, after which she expressed her desire to
have a mass celebrated in her house, so that she might take holy communion, in view of her
condition; that following the request of Encarnacion Neyra, Mons. Fernandez caused the
necessary arrangements to be made for the celebration of holy mass in the house of Encarnacion
Neyra, and, as a matter of fact, on November 1, 1942, holy mass was solemnized in her house,
Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said ceremony, on which occasion,
Encarnacion Neyra, who remained in bed, took holy communion; that after said religious
ceremony had been terminated, Father Garcia talked to Encarnacion Neyra and advised
reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion
Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent
Eustaquio Mendoza to fetch her sister Trinidad Neyra, who came at about 2:30 that same
afternoon; that on seeing one another, the two greeted each other in a most affectionate manner,
and became reconciled; that the two had a long and cordial conversation, in the course of which
the two sisters also talked about the properties left by their deceased father and their litigations
which had reached the Court of Appeals for the City of Manila, and they agreed to have the
said appeal dismissed, on the condition that the property involved therein, consisting of a small
house and lot, should be given exclusively to Trinidad Neyra, on the condition that the latter
should waive her claim for her share in the rents of said property, while under the
administration of Encarnacion Neyra, and that the two should renounce their mutual claims
against one another. It was also agreed between the two sisters to send for Atty. Alejandro M.
Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis
could come only in the afternoon of the following day, November 2, 1942, when Encarnacion
gave him instructions for the preparation of the document embodying their agreement, and
other instructions relative to the disposition she wanted to make of her properties in her last
will and testament; that Attorney Panis prepared said document of compromise or agreement
marked as Exhibit D, as well as the new will and testament marked as Exhibit C, naming
Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express
instructions given by Encarnacion Neyra, and said instruments were ready for signature on
November 3, 1942; that in the afternoon of that day, November 3, 1942; Attorney Panis read said
will and testament marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the
presence of Fr. Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner
Trinidad Neyra, and others, after which he asked her if its terms were in accordance with her
wishes, if she had anything else to add, or anything to be changed in said will; and as
Encarnacion Neyra stated that the terms of said will were in accordance with her wishes and
express instructions, she asked for the pad and the will Exhibit C and, with the help of a son of
herein petitioner, placed her thumb mark at the foot of said will, in the presence of the three
attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis,
after which the attesting witnesses signed at the foot of the document, in the presence of the
testatrix Encarnacion Neyra, and of each and everyone of the other attesting witnesses. Fr.
Teodoro Garcia and petitioner Trinidad Neyra and several others were also present.

On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died.

RULING:

The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of
Addison's disease, is absolutely unreliable. He had never seen or talked to the testatrix
Encarnacion Neyra.

According to the medical authorities, the cause or causes of the sleeping sickness, known as
Addison's disease, are not yet fully known: that persons attacked by said decease often live as
long as ten (10) years after the first attack, while others die after a few weeks only, and that as
the disease, progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients
develop tuberculosis, and complications of the heart also appear.

And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the
age of 48, died on November 4, 1942, due to a heart attack, after an illness of about two (2)
years.

In connection with testamentary capacity, in several cases, this court has considered the
testimony of witnesses, who had known and talked to the testators, more trustworthy than
the testimony of alleged medical experts.

Testamentary capacity is the capacity to comprehend the nature of the transaction in which
the testator is engaged at the time, to recollect the property to be disposed of, and the persons
who would naturally be supposed to have claims upon the testator, and to comprehend the
manner in which the instrument will distribute his property among the objects of his
bounty. (Bugnao vs. Ubag. 14 Phil., 163.)

Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate
of a will, who stated that it tended to destroy mental capacity, was held not to affect the full
possession of the mental faculties deemed necessary and sufficient for its execution. (Caguioa
vs. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite of the
physician's testimony to the contrary, to the effect that she was very weak, being in the third or
last stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The
testimony of the attending physician that the deceased was suffering from diabetes and had
been in a comatose for several days, prior to his death, was held not sufficient to establish
testamentary incapacity, in view of the positive statement of several credible witnesses that he
was conscious and able to understand what said to him and to communicate his desires.
(Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly
sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his
hand in order that he might sign, is sufficient to invalidate his will. (Amata and Almojuela vs.
Tablizo, 48 Phil., 485.)

Where it appears that a few hours and also a few days after the execution of the will, the testator
intelligently and intelligibly conversed with other persons, although lying down and unable to
move or stand up unassisted, but could still effect the sale of property belonging to him, these
circumstances show that the testator was in a perfectly sound mental condition at the time of
executing the will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)

Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the
morning and also at about 6 o'clock in the afternoon of November 3, 1942, Encarnacion Neyra
talked to her and that they understood each other clearly, thus showing that the testatrix was
really of sound mind, at the time of the signing and execution of the agreement and will in
question.

It may, therefore, be reasonably concluded that the mental faculties of persons suffering
from Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the
fact that, on account of the sleep they enjoy, they necessarily receive the benefit of physical
and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes,
they preserve their mental faculties until the moments of their death.

Judging by the authorities above cited, the conclusion made the trial court that the testatrix
Encarnacion Neyra was of sound mind and possessed testamentary capacity, at the time of
the execution of the will, cannot be properly disturbed.

The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries
named therein, including principally her bitterest enemy of late, which is completely
incompatible with the will, dated September 14, 1939, may really seem strange and unusual;
but, as it has been truly said, above the logic of the head is the feeling in the heart, and the heart
has reasons of its own which the head cannot always understand, as in the case of intuitive
knowledge of eternal verity.

As Encarnacion Neyra felt the advent of immortality, she naturally wanted to follow "the path
of the just, which is as the shining light that shineth more and more unto the perfect day," so
that her memory may be blessed. As a Christian woman, she must have loved justice, mercy
and truth and to follow the law, for this is the whole duty of man.

In the matter of the estate of Mariano Corrales Tan, SAMSON vs. QUINTIN, G.R. No. L-
19142, March 5, 1923; OSTRAND, J.

FACTS:

This is an appeal from an order of the Court of First Instance of Manila admitting to probate a
document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There
is no direct evidence as to the interest of the oppositor-appellant in the estate in question,
though it may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the
son of the deceased.

In his answer to the petition for probate he alleges, in substance, that the will is incomplete and
fraudulent and does not express the true intent of the testator; that the testator acted under duress and
under undue influence, and that at the time of the execution of the will he was not of sound and disposing
mind.

ISSUE:

Whether or not the testator was of sound and disposing mind when the document in question
was executed

RULING:

Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the
opposition, is to the effect that the deceased was suffering from diabetes and had been in a comatose
condition for several days prior to his death. He died about 8 or 9 o'clock in the evening of
December 26, and the will is alleged to have been executed in the forenoon of the same day.
Counsel for the appellant, in his well-prepared brief, argues ably and vigorously that coma
implies complete unconsciousness, and that the testator, therefore, could not at that time have been in
possession of his mental faculties and have executed a will.

There are, however, varying degrees of coma and in its lighter forms the patient may be
aroused and have lucid intervals. Such seems to have been the case here. Doctor Tee Han Kee,
the opponent's principal witness, who visited the deceased in the evening of December 25th, says he then
seemed to be in a state of coma and that in the forenoon of December 26th, when the doctor again visited
him, he was in "the same state of coma." Maximina Ong, the wife of the opponent, the only other
witness for the opposition, states that on December 26th the deceased could not talk and did not
recognize anyone. But all the witnesses presented by the petitioner, five in number, testify that the
deceased was conscious, could hear and understand what was said to him and was able to indicate his
desires. Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that the
deceased only moved his head in answer to questions.

That the deceased was in an exceedingly feeble condition at the time the will was executed is
evident, but if the witnesses presented in support of the petition told the truth there can be
no doubt that he was of sound mind and capable of making his will. And we see no reason to
discredit any of these witnesses; the discrepancies found between their respective versions of
what took place at the execution of the document are comparatively unimportant and so far
from weakening their testimony rather lend strength to it by indicating the absence of any
conspiracy among them.

As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee.
The former is not a disinterested witness. As to the testimony of the latter it is sufficient to say
that mere professional speculation cannot prevail over the positive statements of five
apparently credible witnesses whose testimony does not in itself seem unreasonable.

ORTEGA vs. VALMONTE, G.R. No. 157451, December 16, 2005; PANGANIBAN, J.

FACTS:

Two years after his arrival from the United States and at the age of 80, he wed Josefina who was
then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982.
But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.

Placido executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the continuation of the attestation clause and
the acknowledgment, and was signed by the witnesses at the end of the attestation clause and
again on the left hand margin.

The allowance to probate of this will was opposed by Leticia.

"The oppositor Leticia declared that Josefina should not inherit alone because aside from her
there are other children from the siblings of Placido who are just as entitled to inherit from him.
She attacked the mental capacity of the testator, declaring that at the time of the execution of the
notarial will the testator was already 83 years old and was no longer of sound mind. She knew
whereof she spoke because in 1983 Placido lived in the Makati residence and asked Leticia’s
family to live with him and they took care of him. During that time, the testator’s physical and
mental condition showed deterioration, aberrations and senility. This was corroborated by her
daughter Mary Jane Ortega for whom Placido took a fancy and wanted to marry.

ISSUE:

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly executed
the subject will.
RULING:

The Petition has no merit.

Probate of a Will

The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that
must be satisfied for the probate of a will.

Verily, Article 839 of the Civil Code states the instances when a will may be disallowed, as
follows:

"Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmonte’s will by imputing fraud
in its execution and challenging the testator’s state of mind at the time.

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the following
guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at
the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other cause.

"It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character
of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.

"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval."

According to Article 799, the three things that the testator must have the ability to know to be
considered of sound mind are as follows: (1) the nature of the estate to be disposed of, (2) the
proper objects of the testator’s bounty, and (3) the character of the testamentary act. Applying
this test to the present case, we find that the appellate court was correct in holding that Placido
had testamentary capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their locations. As
regards the proper objects of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives from the will did not
affect its formal validity. There being no showing of fraud in its execution, intent in its
disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA, which held thus:

"Between the highest degree of soundness of mind and memory which

unquestionably carries with it full testamentary capacity, and that degrees of
mental aberration generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of body, or from
age, will not render a person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom
he is disposing of his property. To constitute a sound and disposing mind, it is
not necessary that the mind be unbroken or unimpaired or unshattered by
disease or otherwise. It has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or of unsound mind."

BALTAZAR vs. LAXA, G.R. No. 174489, April 11, 2012; DEL CASTILLO, J.

DOCTRINE: It is incumbent upon those who oppose the probate of a will to clearly establish
that the decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute
his estate in the manner provided in his will so long as it is legally tenable.

FACTS:

Paciencia was a 78 year old spinster when she made her last will and testament entitled " Tauli
Nang Bilin o Testamento Miss Paciencia Regala" (Will) in the Pampango dialect on September 13,
1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was
read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental
witnesses that the document is her last will and testament. She thereafter affixed her signature
at the end of the said document on page 3 and then on the left margin of pages 1, 2 and 4
thereof.

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Will’s due execution
by affixing their signatures below its attestation clause and on the left margin of pages 1, 2 and 4
thereof, in the presence of Paciencia and of one another and of Judge Limpin who acted as
notary public.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa.

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother. Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga and
it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the
Will or on September 19, 1981, Paciencia left for the United States of America (USA). There, she
resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition
with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance
of Letters of Administration in his favor.

There being no opposition to the petition after its due publication, the RTC issued an Order on
June 13, 2000 allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra. Limpin
testified that she was one of the instrumental witnesses in the execution of the last will and
testament of Paciencia on September 13, 1981. The Will was executed in her father’s (Judge
Limpin) home office, in her presence and of two other witnesses, Francisco and Faustino. Dra.
Limpin positively identified the Will and her signatures on all its four pages. She likewise
positively identified the signature of her father appearing thereon. Questioned by the
prosecutor regarding Judge Limpin’s present mental fitness, Dra. Limpin testified that her
father had a stroke in 1991 and had to undergo brain surgery. The judge can walk but can no
longer talk and remember her name. Because of this, Dra. Limpin stated that her father can no
longer testify in court.

Later still on September 26, 2000, petitioners filed an Amended Opposition asking the RTC to
deny the probate of Paciencia’s Will on the following grounds: the Will was not executed and
attested to in accordance with the requirements of the law; that Paciencia was mentally incapable to
make a Will at the time of its execution; that she was forced to execute the Will under duress or
influence of fear or threats; that the execution of the Will had been procured by undue and
improper pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not intend the document to be her
Will.

For petitioners, Rosie testified that her mother and Paciencia were first cousins. She claimed to
have helped in the household chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of her service in the said
household, Lorenzo’s wife and his children were staying in the same house. She served in the
said household from 1980 until Paciencia’s departure for the USA on September 19, 1981.

On September 13, 1981, Rosie claimed that she saw Faustino bring "something" for Paciencia to
sign at the latter’s house. Rosie admitted, though, that she did not see what that "something"
was as same was placed inside an envelope. However, she remembered Paciencia instructing
Faustino to first look for money before she signs them. A few days after or on September 16,
1981, Paciencia went to the house of Antonio’s mother and brought with her the said envelope.
Upon going home, however, the envelope was no longer with Paciencia. Rosie further testified
that Paciencia was referred to as "magulyan" or "forgetful" because she would sometimes leave her
wallet in the kitchen then start looking for it moments later. On cross examination, it was established
that Rosie was neither a doctor nor a psychiatrist, that her conclusion that Paciencia was "magulyan"
was based on her personal assessment, and that it was Antonio who requested her to testify in court.

In his direct examination, Antonio stated that Paciencia was his aunt. He identified the Will and
testified that he had seen the said document before because Paciencia brought the same to his
mother’s house and showed it to him along with another document on September 16, 1981.
Antonio alleged that when the documents were shown to him, the same were still unsigned.
According to him, Paciencia thought that the documents pertained to a lease of one of her rice
lands, and it was he who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her departure for the USA,
and a Will which would transfer her properties to Lorenzo and his family upon her death. Upon
hearing this, Paciencia allegedly uttered the following words: "Why will I never [return], why
will I sell all my properties?" Who is Lorenzo? Is he the only [son] of God? I have other relatives
[who should] benefit from my properties. Why should I die already?" Thereafter, Antonio
advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, "I know nothing about those, throw them away or it is up to you. The more
I will not sign them." After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents and eventually turned them over to Faustino on September 18, 1981.
ISSUE:

Whether or not the authenticity and due execution of the notarial Will was sufficiently
established to warrant its allowance for probate

RULING:

Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
proceedings.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by law.
These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:

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 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 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 witnesses, it shall be

interpreted to them.

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.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and her instrumental witnesses
signed the Will in the presence of one another and that the witnesses attested and subscribed to
the Will in the presence of the testator and of one another. In fact, even the petitioners acceded that
the signature of Paciencia in the Will may be authentic although they question her state of mind when she
signed the same as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound mind at the time of the execution of the
will lies on the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was "magulyan" or forgetful so
much so that it effectively stripped her of testamentary capacity. They likewise claimed in their
Motion for Reconsideration filed with the CA that Paciencia was not only "magulyan" but was
actually suffering from paranoia.

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily
make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is
not equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
 It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character
of the testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there is
no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound
mind at the time of the execution of the Will. On the other hand, we find more worthy of
credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia when the latter
went to Judge Limpin’s house and voluntarily executed the Will. "The testimony of subscribing
witnesses to a Will concerning the testator’s mental condition is entitled to great weight where
they are truthful and intelligent." More importantly, a testator is presumed to be of sound
mind at the time of the execution of the Will and the burden to prove otherwise lies on the
oppositor.

Here, there was no showing that Paciencia was publicly known to be insane one month or
less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of
unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no
substantial evidence was presented by them to prove the same, thereby warranting the CA’s
finding that petitioners failed to discharge such burden.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As
aptly pointed out by the CA:

A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document
she executed. She specially requested that the customs of her faith be observed upon her
death. She was well aware of how she acquired the properties from her parents and the
properties she is bequeathing to LORENZO, to his wife CORAZON and to his two (2)
children. A third child was born after the execution of the will and was not included
therein as devisee.

SOLEMNITIES/FORMALITIES

TESTATE ESTATE OF THE LATE ALIPIO ABADA, G.R. NO. 147145, January 31, 2005,
CARPIO, J.

Abada died sometime in May 1940.4 His widow Paula Toray ("Toray") died sometime in
September 1943. Both died without legitimate children.

On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the court a petition for the probate
of the last will and testament ("will") of Abada. Abada allegedly named as his testamentary
heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of
Eulogio.

Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will
when he died in 1940. Caponong further alleged that the will, if Abada really executed it,
should be disallowed for the following reasons: (1) it was not executed and attested as required
by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue
and improper pressure and influence on the part of the beneficiaries. Citing the same grounds
invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz,
Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi,
Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed
the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray.

The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to
dismiss the petition for probate, that is, whether the will of Abada has an attestation clause as
required by law.

ISSUES:
 1. What laws apply to the probate of the last will of Abada

2. Whether the will of Abada requires acknowledgment before a notary public

3. Whether the will must expressly state that it is written in a language or dialect known to
the testator

4. Whether the will of Abada has an attestation clause, and if so, whether the attestation
clause complies with the requirements of the applicable laws

5. Whether Caponong-Noble is precluded from raising the issue of whether the will of
Abada is written in a language known to Abada

6. Whether evidence aliunde may be resorted to in the probate of the will of Abada

RULING:

The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the
will of Abada.

Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889
or the Old Civil Code, and Act No. 190 or the Code of Civil Procedure which governed the
execution of wills before the enactment of the New Civil Code.

The matter in dispute in the present case is the attestation clause in the will of Abada. Section
618 of the Code of Civil Procedure, as amended by Act No. 2645, governs the form of the
attestation clause of Abada's will.

Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following:

(1) The will must be written in the language or dialect known by the testator;

(2) The will must be signed by the testator, or by the testator's name written by some other
person in his presence, and by his express direction;

(3) The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other;

(4) The testator or the person requested by him to write his name and the instrumental
witnesses of the will must sign each and every page of the will on the left margin;

(5) The pages of the will must be numbered correlatively in letters placed on the upper part of
each sheet;

(6) 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 of the will, or caused some
other person to write his name, under his express direction, in the presence of three witnesses,
and the witnesses witnessed and signed the will and all pages of the will in the presence of the
testator and of each other.

Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language
or dialect known to the testator. Further, she maintains that the will is not acknowledged before
a notary public, citingArticles 804 and 805 of the Old Civil Code.

Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code, which are new
provisions.
Under the Code of Civil Procedure, the intervention of a notary is not necessary in the execution
of any will. Therefore, Abada's will does not require acknowledgment before a notary public.

Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish
language. She alleges that such defect is fatal and must result in the disallowance of the will. On this
issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and
that it is now too late to raise the issue on appeal. We agree with Caponong-Noble that the
doctrine of estoppel does not apply in probate proceedings. In addition, the language used in
the will is part of the requisites under Section 618 of the Code of Civil Procedure and the Court
deems it proper to pass upon this issue.

Nevertheless, Caponong-Noble's contention must still fail. There is no statutory requirement to

state in the will itself that the testator knew the language or dialect used in the will. This is a
matter that a party may establish by proof aliunde. Caponong-Noble further argues that
Alipio, in his testimony, has failed, among others, to show that Abada knew or understood the
contents of the will and the Spanish language used in the will. However, Alipio testified that
Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and
his companions would talk in the Spanish language. This sufficiently proves that Abada speaks
the Spanish language.

The Attestation Clause of Abada's Will

Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble
alleges that the attestation clause fails to state the number of pages on which the will is written.

The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos hojas
de que esta compuesto el mismo" which means "in the left margin of each and every one of the two
pages consisting of the same" shows that the will consists of two pages. The pages are
numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase
"las cuales estan paginadas correlativamente con las letras "UNO" y "DOS."

Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator
signed the will and its every page in the presence of three witnesses.

The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio
Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el
testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas
del mismo." The English translation is: "Subscribed and professed by the testator Alipio Abada as his
last will and testament in our presence, the testator having also signed it in our presence on the left
margin of each and every one of the pages of the same." The attestation clause clearly states that
Abada signed the will and its every page in the presence of the witnesses.

However, Caponong-Noble is correct in saying that the attestation clause does not indicate
the number of witnesses. On this point, the Court agrees with the appellate court in applying
the rule on substantial compliance in determining the number of witnesses. While the
attestation clause does not state the number of witnesses, a close inspection of the will shows
that three witnesses signed it.

We rule to apply the liberal construction in the probate of Abada's will. Abada's will clearly
shows four signatures: that of Abada and of three other persons. It is reasonable to conclude
that there are three witnesses to the will. The question on the number of the witnesses is
answered by an examination of the will itself and without the need for presentation of
evidence aliunde. The Court explained the extent and limits of the rule on liberal construction,
thus:

[T]he so-called liberal rule 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 within 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.

The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures
appearing on the will itself and after the attestation clause could only mean that: (1) Abada
subscribed to and professed before the three witnesses that the document was his last will, and
(2) Abada signed the will and the left margin of each page of the will in the presence of these
three witnesses.

Finally, Caponong-Noble alleges that the attestation clause does not expressly state the
circumstances that the witnesses witnessed and signed the will and all its pages in the presence
of the testator and of each other. This Court has ruled:

Precision of language in the drafting of an attestation clause is desirable. However, it is

not imperative that a parrot-like copy of the words of the statute be made. It is sufficient
if from the language employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it.

The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo
firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every
one of us also signed in our presence and of the testator." This clearly shows that the attesting
witnesses witnessed the signing of the will of the testator, and that each witness signed the will
in the presence of one another and of the testator.

DE LA CERNA, ET AL. vs. POTOT, ET AL., G.R. No. L-20234, December 23, 1964; REYES,
J.B.L., J.

FACTS:

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca, executed
a joint last will and testament in the local dialect whereby they willed that "our two parcels of
land acquired during our marriage together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured since childhood, because God did not give
us any child in our union, Manuela Rebaca being married to Nicolas Potot", and that "while
each of the testators is yet living, he or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being covered by Tax No. 4676 and Tax No. 6677,
both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu.

Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate by
said Gervasia and Manuela before the Court of First Instance of Cebu which, after due
publication as required by law and there being no opposition, heard the evidence, and, by
Order of October 31, 1939, the will was admitted for probate.

Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of the
same will insofar as Gervasia was concerned was filed.

The Court of First Instance ordered the petition heard and declared the testament null and void,
for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil
Code of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary
heir, the Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued
by a court of probate jurisdiction and conclusive on the due execution of the testament. Further,
the Court of Appeals declared that:

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for
the benefit of a third person. However, this form of will has long been sanctioned by use,
and the same has continued to be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by final order of a Court of
 competent jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case of Macrohon vs.
Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the
joint will therein mentioned, saying, "assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

RULING:

The appealed decision correctly held that the final decree of probate, entered in 1939 by the
Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even then the Civil Code already
decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in
favor of a third party (Art. 669, old Civil Code).

The error thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final judgment rendered on a
petition for the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil.
938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound practice demand that at
the risk of occasional errors judgment of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other
cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be
validated, overlooks that the ultimate decision on Whether an act is valid or void rests with the
courts, and here they have spoken with finality when the will was probated in 1939. On this
court, the dismissal of their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife,
Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties the
probate court acquired no jurisdiction, precisely because her estate could not then be in issue.
Be it remembered that prior to the new Civil Code, a will could not be probated during the
testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned,
must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu
that the joint will is one prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our
decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her
favor is shown to exist, or unless she be the only heir intestate of said Gervasia.

SUROZA vs. HONRADO, A.M. No. 2026-CFI December 19, 1981; AQUINO, J.

ISSUE: 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?

FACTS:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923. 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.

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.

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. In that will, 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.

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina and the executrix
in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the filed with the court 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 or the
decedent's granddaughter. 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.

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.

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 will, Nenita "filed a case to
annul" the probate proceeding. 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.

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.

RULING:

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.

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". 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.

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.
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.

FORMALITIES FOR NOTARIAL or ORDINARY WILL

1. Manner of Signing

MATIAS vs. HON. GONZALEZ, ET AL., G.R. No. L-10751, 23 June 1958; REYES, J.B.L, J.

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was
suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which
made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina
attempted to sign, but since it was so painful she just managed to thumbmarked the foot of the
document and the left margin at each page. The parties opposing the probate of the will
contended that the will was void due to the irregularities in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not be regarded as the
decedent’s valid signature as it does not show distinct identifying ridgelines. And since the
finger mark was an invalid signature, there must appear in the attestation clause that another
person wrote the testator’s name at his request.

ISSUE: Whether or not the will was valid.

HELD: YES. And as to the validity of the thumbprints as signature, the SC held that it has been
held in a long line of cases that a thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article. Furthermore, the validity of
thumbprints should not be limited in cases of illness or infirmity. A thumbprint is considered as
a valid and sufficient signature in complying with the requirements of the article.

In the Matter of the will of ANTERO MERCADO, G.R. No. L-4067, November 29, 1951,
PARAS, C.J.

FACTS:

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 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 various cases.

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.

BARUT vs. CABACUNGAN, ET AL G.R. No. L-6285, February 15, 1912; MORELAND, J.

FACTS:

This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a
last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the
terms of said will Pedro Barut received the larger part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former
wills by her made. She also stated in said will that being unable to read or write, the same had
been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed
Severo Agayan to sign her name to it as testatrix.

The probate court found that the will was not entitled to probate upon the sole ground that the
handwriting of the person alleged to have signed the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other witnesses to the will than that of the person whose
handwriting it was alleged to be.
RULING:

We do not believe that the mere dissimilarity in writing thus mentioned by the court is
sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request and in her presence and
in the presence of all the witnesses to the will. It is immaterial who writes the name of the
testatrix provided it is written at her request and in her presence and in the presence of all
the witnesses to the execution of the will.

The court seems, by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must afterwards
sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that of the
testatrix as the person who signed her name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the
person who signed the name of the testatrix failed to sign his own.

We do not believe that this contention can be sustained. Section 618 of the Code of Civil
Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any
estate, real or personal, nor charge or effect the same, unless it be in writing and
signed by the testator, 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 each. . . .

This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name The remainder
of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to
be signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and attested
as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not. The
important thing is that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they attested and subscribed it in
her presence and in the presence of each other. That is all the statute requires. It may be wise as
a practical matter that the one who signs the testator's name signs also his own; but that it is
not essential to the validity of the will. Whether one person or another signed the name of the
testatrix in this case is absolutely unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down by the trial court, if it did lay
down, is absolutely unnecessary under the law; and the reasons underlying the provisions of
the statute relating to the execution of wills do not in any sense require such a provision. From
the standpoint of language it is an impossibility to draw from the words of the law the
inference that the persons who signs the name of the testator must sign his own name also.
The law requires only three witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is
unable to write may be signed by another by express direction to any instrument known to the
law. There is no necessity whatever, so far as the validity of the instrument is concerned, for the
person who writes the name of the principal in the document to sign his own name also. As a
matter of policy it may be wise that he do so inasmuch as it would give such intimation as
would enable a person proving the document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it is unnecessary. The main thing
to be established in the execution of the will is the signature of the testator. If that signature is
proved, whether it be written by himself or by another at his request, it is none the less valid,
and the fact of such signature can be proved as perfectly and as completely when the person
signing for the principal omits to sign his own name as it can when he actually signs. To hold a
will invalid for the lack of the signature of the person signing the name of the principal is, in
the particular case, a complete abrogation of the law of wills, as it rejects and destroys a will
which the statute expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs. Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The
headnote in the case last above stated gives an indication of what all of cases are and the
question involved in each one of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote
his own upon the will. Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the
person who signed the will for the testator wrote his own name to the will instead of writing that of the
testator, so that the testator's name nowhere appeared attached to the will as the one who executed it. The
case of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will
himself, it shall be signed in the following manner: "John Doe, by the testator,
Richard Roe;" or in this form: "By the testator. John Doe, Richard Roe." All this
must be written by the witness signing at the request of the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the
person who was authorized to sign the name of the testator to the will actually failed to sign such name
but instead signed his own thereto. The decision in that case related only to that question.

Summary of rules:

Various and considerable in number have been the decisions rendered by this court in which, as
will be seen further on, upon applying the said section 618 of Code of Civil Procedure and
requiring its observance in cases where the testator or testatrix is unable or does not know how
to sign his or her name, expressly prescribed the practical method of complying with the
provisions of the law on the subject. Among these decisions several were written by various
justices of this court, some of whom are no longer on this bench, as they have ceased to hold
such position.

1. Ex parte Delfin Santiago

Where a will is not signed by a testator but by some other person in his presence and by his
direction, such other person should affix the name of the testator thereto, and it is not sufficient that he
sign his own name for and instead of the name of the testator.

2. Ex parte Arcenas

Article 695 of the Civil Procedure; consequently where a testator is unable to sign his name, the
person signing at his request must write at the bottom of the will the full name of the testator in the
latter's presence, and by his express direction, and then sign his own name in full.

3. When the essential requisites of section 618 of the Code of Civil Procedure for the
execution and validity of a will have been complied with, the fact that the witness who was
requested to sign the name of the testator, omitted to state the words 'by request of .......... the
testator,' when writing with his own hand the name and surname of the said testator, and the
fact that said witness subscribed his name together with the other witnesses and not below the
name of the testator, does not constitute a defect nor invalidate the said will.

4. In the matter of the will of Maria Siason

The recital of the name of the testator as written below the will at his request serves as a
signature by a third person.
In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In
the Arcenas case the court pointed out the correct formula for a signature which ought to be
followed, but did not mean to exclude any other for substantially equivalent.

5. Ex parte Ondevilla et al.

The testatrix was unable to sign her will with her own hand and requested another person to
sign for her in her presence. This the latter did, first writing the name of the testatrix and
signing his own name below: Held, That the signature of the testatrix so affixed is sufficient and
a will thus executed is admissible to probate. The legality of a will is not affected by the
insertion, supposed to have been made subsequently, of another name before that of the testator
when such name may be treated as nonexistent without affecting its validity.Although the said
words "For Simplicia de los Santos" be considered as inserted subsequently, which we neither
affirm nor deny, because a specific determination either way is unnecessary, in our opinion the
signature for the testatrix placed outside of the body of the will contains the name of the
testatrix as if she signed the will, and also the signature of the witness who, at her request,
wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the
other witnesses then present. And this fully complies with the provisions of section 618 of the
Act.

BEATRIZ NERA, ET AL. vs. NARCISA RIMANDO, G.R. No. L-5971, February 27, 1911,
CARSON, J.

ISSUE: 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.

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 subscribing
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."

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 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.

CELSO ICASIANO vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO G.R. No. L-

18979, June 30, 1964, REYES, J.B.L., J.

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.

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.

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.

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.

RULING:

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.

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, "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.

APOLONIO TABOADA vs. HON. AVELINO S. ROSAL, G.R. No. L-36033 November 5, 1982,
GUTIERREZ, JR. J.

FACTS:
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.

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.

ISSUE: 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?

RULING:

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 will that the
signatures of the subscribing witnesses should be specifically located at the end of the will 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.

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 will that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".

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

The law referred to is article 618 of the Code of Civil Procedure, as amended by
Act No. 2645, which requires that the attestation clause shall state the number of
pages or sheets upon which the will 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.

2. ACKNOWLEDGMENT BEFORE A NOTARY PUBLIC

FELICIDAD JAVELLANA vs. DOÑA MATEA LEDESMA, G.R. No. L-7179, June 30, 1955,
REYES, J.B.L., J.

FACTS:

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.

ISSUES:

(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.

RULING:

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.

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 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.

LETICIA VALMONTE ORTEGA vs. JOSEFINA C. VALMONTE, G.R. No. 157451 December
16, 2005, PANGANIBAN, J.

FACTS:

"Placido executed a notarial last will and testament written in English and consisting of two (2)
pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator and on the left hand margin by the three
instrumental witnesses. The second page contains the continuation of the attestation clause and
the acknowledgment, and was signed by the witnesses at the end of the attestation clause and
again on the left hand margin.

The allowance to probate of this will was opposed by Leticia on the ground that the will was
not executed and attested as required by law and legal solemnities and formalities were not
complied with, among others.

At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty.
Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor
Leticia and her daughter Mary Jane Ortega testified.

ISSUE: Whether the legal solemnities and formalities in the execution and attestation of the will were
duly complied with

RULING:

The fact that public policy favors the probate of a will does not necessarily mean that every will
presented for probate should be allowed. The law lays down the procedures and requisites that
must be satisfied for the probate of a will.10 Verily, Article 839 of the Civil Code states the
instances when a will may be disallowed, one of which is ff the formalities required by law have
not been complied with.

The conflict between the dates appearing on the will does not invalidate the document, "because
the law does not even require that a [notarial] will x x x be executed and acknowledged on the
same occasion." More important, the will must be subscribed by the testator, as well as by three
or more credible witnesses who must also attest to it in the presence of the testator and of one
another. Furthermore, the testator and the witnesses must acknowledge the will before a notary
public.

In any event, we agree with the CA that "the variance in the dates of the will as to its supposed
execution and attestation was satisfactorily and persuasively explained by the notary public and
the instrumental witnesses."

BELLA A. GUERRERO vs. RESURRECCION A. BIHIS, G.R. NO. 174144, April 17, 2007,
CORONA, J.

FACTS:

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. 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 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.

ISSUE: 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?

RULING:

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.

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. This formal
requirement is one of the indispensable requisites for the validity of a will. 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. 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. 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. 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.

Acknowledgment can only be made before a competent officer, that is, a lawyer duly
commissioned as a notary public. A notary public's commission is the grant of authority in his
favor to perform notarial acts. 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,
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.
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.

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.

MANUEL L. LEE vs. ATTY. REGINO B. TAMBAGO, A.C. No. 5281, February 12, 2008,
CORONA, J.

FACTS:

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.
Complainant, however, pointed out that the residence certificate of 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 donation (containing his
purported genuine signature). 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).

RULING:

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. 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.

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, Noynay and Grajo. 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. 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.

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. As we held in Santiago v. Rafanan:

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. A notary public,
especially a lawyer, 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.

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.

Respondent’s 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.

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. 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.

JOSE ANTONIO GABUCAN vs. HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE
YSALINA and NELDA G. ENCLONAR, G.R. No. L-51546 January 28, 1980; AQUINO, J.
FACTS:

This case is about the dismissal of a petition for the probate of a notarial will on the ground that
it does not bear a thirty-centavo documentary stamp. The proceeding was dismissed because
the requisite documentary stamp was not affixed to the notarial acknowledgment in the will
and, hence, according to respondent Judge, it was not admissible in evidence. The probate court
assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo
documentary stamp tax.

Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that
he had already attached the documentary stamp to the original of the will.

RULING:

We hold that the lower court manifestly erred in declaring that, because no documentary stamp
was affixed to the will, there was "no will and testament to probate" and, consequently, the
alleged "action must of necessity be dismissed".

What the probate court should have done was to require the petitioner or proponent to affix the
requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is
the taxable portion of that document.

That procedure may be implied from the provision of section 238 that the non-admissibility of
the document, which does not bear the requisite documentary stamp, subsists only "until the
requisite stamp or stamps shall have been affixed thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time the taxable document
is presented in evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the promissory note does
not bear a documentary stamp, the court should have allowed plaintiff's tender of a stamp to
supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding in Azarraga vs.
Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not
invalidate such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and
Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-6.)

3. SUBSTANTIAL COMPLIANCE RULE

JESUSA CAGRO vs. PELAGIO CAGRO, ET AL., G.R. No. L-5826, April 29, 1953, PARAS, C.J.

FACTS:

This is an appeal interposed by the oppositors from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the
signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand
margin.

RULING:

We are of the opinion that the position taken by the appellant is correct. The attestation clause is
'a memorandum of the facts attending the execution of the will' required by law to be made by
the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation
clause cannot be considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.

ISABEL HERREROS VDA. DE GIL vs. PILAR GIL VDA. DE MURCIANO, G.R. No. L-3362
March 1, 1951, JUGO, J.

FACTS:

The Court of First Instance of Manila admitted to probate the alleged will and testament of the
deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising
only question of law.

RULING:

It will be noted that the attestation clause above quoted does not state that the alleged testor
signed the will. It declares only that it was signed by the witnesses. This is a fatal defect, for
the precise purpose of the attestation clause is to certify that the testator signed the will, this
being the most essential element of the clause . Without it there is no attestation at all. It is said
that the court may correct a mere clerical error. This is too much of a clerical error for it
effects the very essence of the clause. Alleged errors may be overlooked or correct only in
matters of form which do not affect the substance of the statement.

It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills?
Where are we to draw the line? Following that procedure we would be making interpolations
by inferences, implication, and even by internal circumtantial evidence. This would be done in
the face of the clear, uniquivocal, language of the statute as to how the attestation clause should
be made. It is to be supposed that the drafter of the alleged will read the clear words of the
statute when he prepared it. For the court to supply alleged deficiencies would be against the
evident policy of the law.

It is contended that the deficiency in the attestation clause is cured by the last paragraph of
the body of the alleged will, which we have quoted above. At first glance, it is queer that the
alleged testator should have made an attestation clause, which is the function of the witness.
But the important point is that he attests or certifies his own signature, or, to be accurate, his
signature certifies itself. It is evident that one cannot certify his own signature, for it does not
increase the evidence of its authenticity. It would be like lifting one's self by hisown
bootstraps. Consequently, the last paragraph of the will cannot cure in any way the fatal
defect of the attestation clause of the witnesses. Adding zero to an insufficient amount does
not make it sufficient.

It is said that the rules of statutory construction are applicable to documents and wills. This is
true, but said rules apply to the body of the will, containing the testamentary provisions, but
not to the attestation clause, which must be so clear that it should not require any construction.

The parties have cited pro and con several decisions of the Supreme Court, some of which are
said to be rather strict and others liberal, in the interpretation of section 618 of Act No. 190, as
amended by Act No. 2645.

1. Gumban vs. Gorecho: 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
 2. Sano vs. Quintana: The attestation clause must be made in strict conformity with the
requirements of section 618 of Act No. 190, as amended. Where said clause fails to show
on its face a full compliance with those requirements, the defect constitutes sufficient
ground for the disallowance of the will.

3. Uy Coque vs. Navas L. Sioca: Evidence aliunde should not be admitted to establish facts
not appearing on the attestation clause, and where said evidence has been admitted it
should not be given the effect intended.

4. Aldaba vs. Roque: The testatrix signed the attestation clause which was complete, and it
was also signed by the two attesting witnesses. For this reason, the court said: In reality,
it appears that it is the testatrix who makes the declaration about the points contained in
the above described paragraph; however, as the witnesses, together with the testatrix,
have signed the said declaration, we are of the opinion and so hold that the words above
quoted of the testament constitute a sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that: . . .

5. Dischoso de Ticson vs. De Gorotiza: An attestation clause to a will, copied from a form
book and reading: "We, the undersigned attesting witnesses, whose residences are stated
opposite our respective names, do hereby certify that the testatrix, whose name is signed
hereinabove, has publish unto us the foregoing will consisting of two pages as her Last
Will and Testament, and has signed the same in our presence, and in witness whereof
we have each signed the same and each page thereof in the presence of said testatrix and
in the presence of each other," held not to be fatally defective and to conform to the law.

6. Grey vs. Fabie: The will was objected to on the ground that, although the attestation
clause stated that "each of the pages of which the said will is composed" was signed by
the testatrix at the left margin and at the foot of the fifth page, it did not state that the
signature was made in the presence of the witnesses. It was held, however, that said
deficiency was cured by the phrase "as well as by each of us in the presence of the
testatrix." The words "as well as" indicate that the testatrix signed also in the presence of
the witnesses, for the phrase "as well as" in this case is equivalent to "also." The language
is clear and, unlike the attestation clause in the present case, does not necessitate any
correction. In the body of the will the testatrix stated that she signed in the presence of
each and all of the three witnesses. This was considered as a corroboration, but it was
unnecessary.

7. Leynez vs. Leynez: The objection was that the attestation clause did not state that the
testator and the witnesses signed each and every page of the will. This fact, however,
appears in the will itself. It is clear, therefore, that in case of the will complied with all
the requisites for its due execution. In the instant case, essential words were omitted.

8. Mendoza vs. Pilapil: The attestation clause did not state the number of pages of the will.
However, it was held that this deficiency was cured by the will itself, which stated that it
consisted of three pages and in fact it had three pages.

9. Rallos vs. Rallos: It will be noticed that the only thing omitted is the statement as to the
signing of the testatrix and the witnesses of each and every page of the will, but the
omission is cured by the fact that their signatures appear on every page.

In interpreting the legislature's thought, courts have rigidly opposed any exception tending to
weaken the basic principle underlying the law, the chief purpose of which is to see that the
testator's wishes are observed. It is possible, in some or many cases, a decedent may have
thought he had made a will, but the statute says he had not. The question is not one of his
intention, but of what he actually did, or . . . failed to do. . . . It may happen . . . that . . . wills . . .
truly expressing the intentions of the testator are made without observations of the required
forms; and whenever that happens, the genuine intention is frustrated. . . . The Legislature . . .
has taught of it best and has therefore determined, to run the risk of frustrating (that intention . .
. in preference to the risk of giving effect to or facilitating the formation of spurious wills, by the
absence of forms. . . . The evil probably to arise by giving to wills made without any form . . .”
or, in derogation of testator's wishes, fraudulently imposing spurious wills on his effect on his
estate.

It has always been the policy of this court to sustain a will if it is legally possible to do so, but
we cannot break down the legislative barriers protecting a man's property after death, even if a
situation may be presented apparently meritorious.

TEODORO CANEDA, ET AL. vs. HON. COURT OF APPEALS and WILLIAM CABRERA,
G.R. No. 103554 May 28, 1993, REGALADO, J.

ISSUE: 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.

FACTS:

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. 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.

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition 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.

On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sought 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.

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".

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 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.

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 they had died by then.

Petitioners 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.

RULING:

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. 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, hence 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.

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.

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. 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. 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. 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.

Under the third paragraph of Article 805, such a clause, the complete lack of which would result
in the invalidity of the will, 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 said witnesses 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; 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.

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. The attestation clause, therefore,
provide strong legal guaranties for the due execution of a will and to insure the authenticity
thereof. As it appertains only to the witnesses and not to the testator, it need be signed only by them.
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.

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. . . .

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. 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.

In Taboada vs. Rizal, 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 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 and 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

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.

We believe that the further comment of former Justice J.B.L. Reyes 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.
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. 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 advances the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan, 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, Aldaba vs. Roque, Unson vs.
Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et al., 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, In re
Will of Andrada, Uy Coque vs. Sioca, In re Estate of Neumark, and Sano vs. Quintana.

Gumban vs. Gorecho, et al. 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 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.
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, Rodriguez vs. Alcala, Enchevarria vs. Sarmiento, and Testate
Estate of Toray went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et
al., Rey vs. Cartagena, De Ticson vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap,
Grey vs. Fabia, Leynez vs. Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs. Fernandez,
Mendoza vs. Pilapil, and Lopez vs. Liboro, 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."

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

FELIX AZUELA vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by

ERNESTO G. CASTILLO, G.R. No. 122880, April 12, 2006, TINGA, J.
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view
of Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain
an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient
to deny probate. A notarial will with all three defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in
the due execution of the notarial will. Article 806 likewise imposes another safeguard to the
validity of notarial wills — that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal provisions
opens itself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking
huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at

patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix

Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote numero
28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan
sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot
42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at
kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at

kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)

PATUNAY NG MGA SAKSI

 Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa
kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.

EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.

QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA

Doc. No. 1232 ; NOTARIO PUBLIKO

Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand margin of
both pages of the will, but not at the bottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself
as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that
the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a
defense in several court cases filed by oppositor against petitioner, particularly for forcible entry
and usurpation of real property, all centering on petitioner’s right to occupy the properties of
the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent
was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing
abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio
Igsolo, who died in 1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedent’s signature did not appear on the second page of the
will, and the will was not properly acknowledged. These twin arguments are among the central matters
to this petition.

RULING:

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the attestation clause" is merely directory, rather than
mandatory, and thus susceptible to what he termed as "the substantial compliance rule."

The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which
we replicate in full.

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 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 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 witnesses, it shall be

interpreted to them.

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.

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state
the number of pages of the will. But an examination of the will itself reveals several more deficiencies.

As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will. There was an incomplete attempt to comply with this requisite, a space having been allotted
for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence,
the requisite was left uncomplied with.

The Court of Appeals pounced on this defect in reversing the trial court, citing in the process
Uy Coque v. Navas L. Sioca and In re: Will of Andrada.

In Uy Coque, the Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will. In ruling that the will could
not be admitted to probate, the Court made the following consideration which remains highly
relevant to this day: "The purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be so prepared that the removal of a
sheet would completely change the testamentary dispositions of the will and in the absence of a
statement of the total number of sheets such removal might be effected by taking out the sheet
and changing the numbers at the top of the following sheets or pages. If, on the other hand, the
total number of sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty."
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state
the number of sheets or pages used. This consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." It
was further observed that "it cannot be denied that the x x x requirement affords additional
security against the danger that the will may be tampered with; and as the Legislature has seen
fit to prescribe this requirement, it must be considered material."

Against these cited cases, petitioner cites Singson v. Florentino and Taboada v. Hon. Rosal, wherein
the Court allowed probate to the wills concerned therein despite the fact that the attestation
clause did not state the number of pages of the will. Yet the appellate court itself considered the
import of these two cases, and made the following distinction which petitioner is unable to
rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the
attestation does not state the number of pages used upon which the will is
written. Hence, the Will is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., and Apolonio [Taboada] versus Hon. Avelino Rosal, et al." to the effect that a will
may still be valid even if the attestation does not contain the number of pages used upon which
the Will is written. However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus
Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the
number of pages used in the will, however, the same was found in the last part of the body of
the Will:

"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 will 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. Gorcho, 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."

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the
Will states the number of pages used in the:

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

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section 618 of
the Code of Civil Procedure. Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section 618.
However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary from
the philosophy that governed these two cases. Article 809 of the Civil Code states: "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."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated that
"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. This objective is in accord
with the [modern tendency] in respect to the formalities in the execution of wills." However,
petitioner conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report,that such liberalization be "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."

Caneda v. Court of Appeals features an extensive discussion made by Justice Regalado, speaking
for the Court on the conflicting views on the manner of interpretation of the legal formalities
required in the execution of the attestation clause in wills. Uy Coque and Andrada are cited
therein, along with several other cases, as examples of the application of the rule of strict
construction. However, the Code Commission opted to recommend a more liberal construction
through the "substantial compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:

x x x 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 these 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.

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is
one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that the witnesses subscribed
their respective signatures to the will in the presence of the testator and of each other, the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission 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." Thus, a failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s presence should be
considered a fatal flaw since the attestation is the only textual guarantee of compliance.

The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. 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.
The failure to state the number of pages equates with the absence of an averment on the part of
the instrumental witnesses as to how many pages consisted the will, the execution of which
they had ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as
was the situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation clause
or anywhere in the will itself as to the number of pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills. Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will. The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the fruition of the
testator’s incontestable desires, and not for the indulgent admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an examination of
the will itself reveals a couple of even more critical defects that should necessarily lead to its
rejection.

For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the notary public.

Cagro v. Cagro is material on this point. As in this case, "the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin." While three (3) Justices considered the
signature requirement had been substantially complied with, a majority of six (6), speaking
through Chief Justice Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation clause is
"a memorandum of the facts attending the execution of the will" required by law to be made by
the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation
clause cannot be considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent occasion and in the absence of the testator and
any or all of the witnesses.
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be
"attested and subscribed by [the instrumental witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the instrumental witnesses signed the left-hand
margin of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the signatures that do appear on
the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses’ signatures on each and every
page, the fact must be noted that it is the attestation clause which contains the utterances
reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages used upon which
the will is written; the fact that the testator had signed the will and every page thereof; and
that they witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have stated these
elemental facts would be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should also
hinge. The requirement under Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a separate provision, Article 806. The
non-observance of Article 806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at

ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner
of contemplation can those words be construed as an acknowledgment. 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.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has attested to the notary that
the same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of an affidavit where the notary certifies that before
him/her, the document was subscribed and sworn to by the executor.42 Ordinarily, the
language of the jurat should avow that the document was subscribed and sworn before the
notary public, while in this case, the notary public averred that he himself "signed and
notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the
signing of and swearing in of the executors of the document, which in this case would involve
the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the instrumental witnesses executed or
signed the will as their own free act or deed. The acknowledgment made in a will provides for
another all-important legal safeguard against spurious wills or those made beyond the free
consent of the testator. An acknowledgement is not an empty meaningless act.43 The
acknowledgment coerces the testator and the instrumental witnesses to declare before an officer
of the law that they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution
of persons who participate in the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of assurance that the testator is of
certain mindset in making the testamentary dispositions to those persons he/she had
designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article
806. A notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will in
question. We need not discuss them at length, as they are no longer material to the disposition
of this case. The provision requires that the testator and the instrumental witnesses sign each
and every page of the will on the left margin, except the last; and that all the pages shall be
numbered correlatively in letters placed on the upper part of each page. In this case, the
decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called "logical end"44 of the will on its first page. Also, the will
itself is not numbered correlatively in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the notion that these two requirements
be construed as mandatory.45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though indicative as they may be of a
general lack of due regard for the requirements under Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the probate
denial inexorable.