PAYAD, petitioner-appellant, vs. TOLENTINO, oppositor-appellant.

FACTS: Both parties in this case appeal from an order of the trial court denying the probate of the alleged will of Leoncia Tolentino, deceased on the ground that the attestation clause was not in conformity with the requirements of law in that it is not stated therein that the testatrix caused Attorney Almario to write her name at her express direction. ISSUE: Whether the attestation clause does not state that the testratrix requested Attorney Almario to write her name. HELD: The evidence of record established the fact that Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark on each and every age of time questioned will and the said attorney merely wrote her name to indicate the place where she placed said thumb mark. In other words Attorney Almario did not sign for the testatrix. She signed for placing her thumb mark on each and every page thereof "A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's mark." It is clear, therefore, that it was not necessary that the attestation clause in question should state that the testatrix requested Attorney Almario to sign her name inasmuch as the testratrix signed the will in question in accordance with law. The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino, deceased is admitted to probate.

BALONAN, petitioner-appellee, vs. ABELLANA, et al., oppositors-appellants. FACTS: The last Will and Testament of Anacleta Abellana, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space is sought to be probated. The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of three instrumental witnesses at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page it also appears the signature of the three instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name

appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. The Court of First Instance of Zamboanga City admitted to probate the will of Anacleta Abellana. Hence, this appeal. ISSUE: Whether the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed. HELD: The present law, Article 805 of the Civil Code, in part provides as follows: 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 witness in the presence of the testator and of one another. (Emphasis supplied.) The clause "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," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190). Note that the old law as well as the new law require that the testator himself sign the will, or if he cannot do so, the testator's name must be written by some other person in his presence and by his express direction In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction. It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.

NERA, ET AL., plaintiffs-appellees, vs. RIMANDO, defendant-appellant. FACTS: This is an appeal from a decree of the trial court when it allowed the probate of the will of deceased based on the doctrine laid in the case of Jaboneta vs. Gustilo wherein the alleged fact in the said case was one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. 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. HELD: A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to the instrument. The Court ruled in the case of Jaboneta vs. Gustilo that the true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the

doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other 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.

TABOADA, petitioner, vs.. ROSAL respondent. FACTS: The petitioner filed a petition to probate the will of the deceased with the respondent court and 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 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 attesting witnesses and at the left hand margin by the testatrix. Since no opposition was filed after the petitioner's compliance with the requirement of publication, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution. The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion, ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance of the will.

The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court. Meanwhile, the petitioner filed a motion for the appointment of special administrator. Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise denied. The petitioner decided to file the present petition. ISSUE: Whether the respondent erred in denying the probate the will of the deceased filed by petitioner. HELD: The Court 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). 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). 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). 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.

CRUZ , petitioner, vs. VILLASOR, et al. respondents. FACTS: Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the will, alleging the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law.

Of the three instrumental witnesses namely Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. As the third witness is the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to acknowledge the will. On the other hand, private respondentappellee, Manuel B. Lugay, who is the supposed executor of the will, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary public acted as one of them. Notwithstanding her objection, the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari. ISSUE: Whether the supposed last will and testament of Valente Z. Cruz was executed in accordance with law. HELD: We are inclined to sustain that of the appellant that the last will and testament in question was not executed in accordance with law. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow; to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. The judgment appealed from is hereby reversed and the probate of the last will and testament of Valente Z. Cruz is declared not valid and hereby set aside.

VDA. DE RAMOS, et al. petitioners, vs.COURT OF APPEALS, et al. respondents. FACTS: Adelaida Nista who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament and codicil of the late Eugenia Danila. The petitioner

prayed that after due notice and proper hearing, the alleged will and codicil be probates and allowed and that she or any other person be appointed as administrator of the testatrix's estate. Buenaventura and Marcelina (Martina) both surnamed Guerra filed an opposition and an amended opposition to the petition alleging that they are the legally adopted son and daughter of the late spouses Florentino Guerra and Eugenia Danila that the purported will and codicil subject of the petition were procured through fraud and undue influence; that the formalities required by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix. Then, the petitioner and the oppositors, entered into a Compromise Agreement and was approved by the lower court. Rosario de Ramos, Miguel Danila Felix Danila Miguel Gavino Amor Danila Consolacion Santos and Miguel Danila son of the late Fortunato Danila filed a motion for leave to intervene as copetitioners alleging that being instituted heirs or devisees, they have rights and interests to protect in the estate of the late Eugenia Danila. The intervenors also filed a motion for new trial and to set aside the judgment based on compromise. The oppositors interposed an opposition to the motion to which the intervenors filed their reply. The lower court resolved the motions in an order declaring movants Rosario de Ramos and are allowed and admitted to intervene to this proceeding, the compromise agreement is disapproved and he original Petition and amended opposition to probate of the alleged will and codicil stand. A motion for reconsideration of the foregoing order was filed by the intervenors co-petitioners but the motion was denied. After trial on the merits, the lower court rendered its decision dated allowing the probate of the will in that decision, although two of the attesting witness Odon Sarmiento and Rosendo Paz, testified that they did not see the testatrix Eugenia Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court gave more weight to the 'straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who assisted in the execution of the will that the testatrix.

Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the foregoing decision to the Court of Appeals and ruled that the lower court acted correctly in setting aside its judgment approving the Compromise Agreement and in allowing the intervenor petitioners to participate in the instant probate proceedings; however, it disallowed the probate of the will. Hence, this appeal. ISSUE: Whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary. HELD: We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in question. There is ample and satisfactory evidence to convince us that the will and codicil were executed in accordance with the formalities required by law. It appears positively and convincingly that the documents were prepared by a lawyer, Atty. Manuel Alvero The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. The object is to close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. If there should be any stress on the participation of lawyers in the execution of a wig, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the above-named lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the presumption of ty in the execution of the questioned documents. There were no incidents brought to the attention of the trial court to arouse suspicion of anomaly. While the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the 3 attesting witnesses. Similarly, the attestation claim far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution.

Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause which, significantly is a separate memorandum or record of the facts surrounding that the conduct of execution. Once signed by the attesting witnesses, it that compliance with the indispensable legal formalities had been observed. This Court had previously hold that the attestation clause basically contracts the pretense of undue ex execution which later on may be made by the attesting witnesses. In the attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signature following that of the testatrix show that they have in fact at not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attention clause. By signing the will the witnesses impliedly to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like.

SEBASTIAN, petitioner-appellant, vs. PAGANIBAN, ET AL., oppositor-appellees. FACTS: The Court of First Instance of Bulacan denied the probate of the will of Pedro Paganiban y Jacob upon the ground that the attestation clause was fatally defective in that it did not strictly comply with the law. The attestation clause in question and the will are in the Tagalog dialect but the trial court judge translated the attestation clause into Spanish. The appellees make no objection to the translation of the trial court while the appellant contends that a more liberal translation could have been made. Hence, this appeal. ISSUE: Whether the trial court erred in denying the probate of the will of the deceased on the ground that the attestation clause was fatally defective in that it did not strictly comply with the law. HELD: In the case of the Estate of the deceased Magdalena the Court said that at once it can be conceded that the attestation clause is not written as clearly as it should have been. It can, however, be further conceded that, while precision of language in drafting an attestation clause is desirable, it is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills the requirements of the law.

Also, in Abangan vs. Abangan the Court ruled the basic decision in this respect, grounded on the doctrine of reasonableness and intention and in the case of Dichoso de Ticson vs. De Gorostiza the Court ruled that where an attestation clause was held not to be fatally defective and to conform to the law. In conformity with these doctrines, the Court think that the trial judge was wrong in holding that a defective attestation clause requires that the will be not legalized.