Article 804-806

1.) In Writing

G.R. No. L-28946

January 16, 1929

In re estate of Piraso, deceased.

SIXTO ACOP, petitioner-appellant,
vs.
SALMING PIRASO, ET AL., opponents-appellees.
Gibbs and McDonough and Roman Ozaeta for appellant.
Adolfo A. Scheerer for appellees.
ROMUALDEZ, J.:
This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the probate of the instrument
Exhibit A, as the last will and testament of the deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the lower court:
1. In holding that in order to be valid the will in question should have been drawn up in the Ilocano dialect.
2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to understand a will drawn
up in said dialect.
3. In refusing to admit the will in question to probate.
The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows: The evidence shows that
Piraso knew how to speak the Ilocano dialect, although imperfectly, and could make himself understood in that dialect,
and the court is of the opinion that his will should have been written in that dialect.
Such statements were not unnecessary for the decision of the case, once it has been proved without contradiction, that
the said deceased Piraso did not know English, in which language the instrument Exhibit A, alleged to be his will, is
drawn. Section 628 of the Code of Civil Procedure, strictly provides that:
"No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a resident of the Philippine
Islands, before the present Code of Civil Procedure went into effect), "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," etc. (Emphasis
supplied.) Nor can the presumption in favor of the will established by this court in Abangan vs. Abangan (40 Phil., 476), to
the effect that the testator is presumed to know the dialect of the locality where he resides, unless there is proof to the
contrary, even he invoked in support of the probate of said document Exhibit A, as a will, because, in the instant case, not
only is it not proven that English is the language of the City of Baguio where the deceased Piraso lived and where Exhibit
A was drawn, but that the record contains positive proof that said Piraso knew no other language than the Igorrote dialect,
with a smattering of Ilocano; that is, he did not know the English language in which Exhibit A is written. So that even if
such a presumption could have been raised in this case it would have been wholly contradicted and destroyed.
We consider the other question raised in this appeal needless and immaterial to the adjudication of this case, it having
been, as it was, proven, that the instrument in question could not be probated as the last will and testament of the
deceased Piraso, having been written in the English language with which the latter was unacquainted.
Such a result based upon solidly established facts would be the same whether or not it be technically held that said will, in
order to be valid, must be written in the Ilocano dialect; whether or not the Igorrote or Inibaloi dialect is a cultivated
language and used as a means of communication in writing, and whether or not the testator Piraso knew the Ilocano
dialect well enough to understand a will written in said dialect. The fact is, we repeat, that it is quite certain that the
instrument Exhibit A was written in English which the supposed testator Piraso did not know, and this is sufficient to
invalidate said will according to the clear and positive provisions of the law, and inevitably prevents its probate.
The judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered.

G.R. No. 147145

January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, petitioner,

vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
The Court of Appeals sustained the Resolution3 of the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 ("RTCKabankalan"), admitting to probate the last will and testament of Alipio Abada ("Abada").
The Antecedent Facts
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 then Court of First Instance of Negros Occidental (now RTCKabankalan) a petition,5 docketed as SP No. 070 (313-8668), 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.
On 13 September 1968, Alipio filed another petition 6 before the RTC-Kabankalan, docketed as SP No. 071 (312-8669), for the probate
of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on the same grounds
they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition 7 before the RTC-Kabankalan, docketed as SP No. 069 (309), praying for the
issuance in his name of letters of administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did not file any
motion for reconsideration, the order allowing the probate of Torays will became final and executory.8
In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble ("Caponong-Noble") Special
Administratrix of the estate of Abada and Toray.9 Caponong-Noble moved for the dismissal of the petition for probate of the will of
Abada. The RTC-Kabankalan denied the motion in an Order dated 20 August 1991.10
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16 March 1992,
former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered a Resolution
dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as
the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of
the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will
and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar11 is appointed administrator of the estate of Paula Toray who shall discharge his duties as such
after letters of administration shall have been issued in his favor and after taking his oath and filing a bond in the amount of Ten
Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as such until further
orders from this Court.
SO ORDERED.12
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. The RTC-Kabankalan further held that the failure of the
oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTC-Kabankalan. The appellate
court found that the RTC-Kabankalan properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following 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;13
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.
The Ruling of the Court

The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada.
The Applicable Law
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 Procedure14 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. 2645,15 governs the form of the attestation clause of Abadas will. 16Section 618 of the Code of Civil Procedure, as
amended, provides: SEC. 618. Requisites of will. No will, except as provided in the preceding section, 17 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 testators 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.
Requisites of a Will under the Code of Civil Procedure
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 testators 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. She cites in particular Articles 804 and 805 of the Old Civil Code,
thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code.19 Article 804 of the Old Civil Code is about the rights and
obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken from Section 618 of the Code
of Civil Procedure.20 Article 806 of the New Civil Code is taken from Article 685 of the Old Civil Code21 which provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator, or, should they not know
him, he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting witnesses.
The notary and the witnesses shall also endeavor to assure themselves that the testator has, in their judgment, the legal capacity
required to make a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also required to know
the testator.
However, the Code of Civil Procedure22 repealed Article 685 of the Old Civil Code. Under the Code of Civil Procedure, the intervention
of a notary is not necessary in the execution of any will.23 Therefore, Abadas will does not require acknowledgment before a notary
public.1awphi1.nt

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.24 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-Nobles 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.25 This is a matter that a party may establish by proof aliunde.26 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. 27 This sufficiently proves that Abada speaks the Spanish
language.
The Attestation Clause of Abadas 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. She then faults the Court of Appeals for applying to the present case the rule on substantial
compliance found in Article 809 of the New Civil Code.29
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.
This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code. InDichoso de Ticson v. De
Gorostiza,30 the Court recognized that there are two divergent tendencies in the law on wills, one being based on strict construction
and the other on liberal construction. In Dichoso, the Court noted thatAbangan v. Abangan,31 the basic case on the liberal construction,
is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for liberal construction of applicable laws, enumerated a long line of
cases to support her argument while the respondent, contending that the rule on strict construction should apply, also cited a long
series of cases to support his view. The Court, after examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than
anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance
with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. x x x.
An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will,
so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills,
2d ed., sec. 132.) A will, therefore, should not be rejected where its attestation clause serves the purpose of the law. x x
x 331a\^/phi1.net
We rule to apply the liberal construction in the probate of Abadas will. Abadas 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. l^vvphi1.net 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.34 (Emphasis supplied)

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
witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled:

the

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.35
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.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644.

2.)

In a language or dialect known to the testator

G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this
decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the name and under the direction of the testatrix) and by three witnesses.
The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these
sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should have been denied. We are of the opinion that the will was duly
admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 (which is the one applicable in the case) evidently has for its object (referring to the body of the
will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are
wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the
left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the statute took into consideration,
undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do
not have to sign at the bottom. A different interpretation would assume that the statute requires that this sheet, already signed at the
bottom, be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the testator and
the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity,
another signature on its left margin would be unneccessary; and if they do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of
the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether any sheet of the will has been removed. But, when all the dispositive
parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and three witnesses and the second contains only the attestation clause and is signed also at the

bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses,
or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way
as to attain these primordal ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the testarix knew the dialect in which the will is written. But
the circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is
written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.

G.R. No. L-1787

August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after
the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1)
that the deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the
execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute
said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as
such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on the part of the
beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that
the signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the
document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged error of the court "in
allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his
case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means of preventing the substitution or of
defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the omission to put a page number on
the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numerical words
or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to
the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page.
Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator
was in full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction for the disposition of
the marker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator
and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page one. Abangan vs.
Abangan,supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.

Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses is assailed
under this heading. On the merits we do not believe that the appellant's contention deserves serious consideration. Such contradictions
in the testimony of the instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one of the
witnesses can be supposed to have perceived, or to recall in the same order in which they occurred.
Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of
witnesses generally occur in the details of a certain incident, after a long series of questioning, and far from being an evidence
of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like
manner, it is but natural that in relating their impressions they should not agree in the minor details; hence, the contradictions
in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering
from "partial paralysis." While another in testator's place might have directed someone else to sign for him, as appellant contends
should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of
authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if
the signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that the trial court communicated an abuse of discretion
in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in which the will is drawn, after
the petitioner had rested his case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of
evidence. It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested,
and this discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion
of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been
written, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed to offer
rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly
discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to
present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's understanding of the
language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will itself. It is a
matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the
probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even
extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a
presumption arises that said Maria Tapia knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

G.R. No. L-13781

January 30, 1960

Testate Estate of JOSE J. JAVELLANA, Deceased. CRISTETA JIMENEA VDA. DE JAVELLANA, and BENJAMIN
JAVELLANA, petitioners-appellees,
vs.
JOSE JAVELLANA y AZAOLA and JOSE JAVELLANA, JR., oppositors-appellants.
On June 29, 1957, a petition to probate the alleged last will and testament of Jose J. Javellana, who died on May 24 of the same year,
was presented in the Court of First Instance of Rizal by Crsiteta Jimenea Vda. de Javellana and Benjamin Javellana, widow and brother
respectively of the deceased, alleging that the aforesaid Jose J. Javellana, at the time of his death, a resident of Ssan Juan Rizal, left
porperties with an approximate value of P400,000.00; that he also left a will which was delivered to the clerk of court pursuant to the
Rules of Court; that Oscar Ledesma, therein named executor, had agreed to act as such; that the decedent's next of kin were; the
wido., Criteta J. Vda. de Javellana, his children Erlinda Javellana, Jose Javellana y Azaola, and Jose Javellana, Jr. (Pepito), his
sister Juanito J. de Ledesma, and brother Benjamin Javellana, whose respective addresses wre given in the petition.
To this petition, Jose Javellana y Azaola and Jose Javellana, Jr. (Pepito) filed separate opposiytions, both claiming that the alleged will
of Jose J. Javellana deposited by peittioners with the clerk of court was null and void, the same not having been executed "in
accordance with the formalities required by law" and that "the legal requirements necessary for its validit" had not been complied with.
At the hearing, petitioners introduced as evidence in support of the petition, a copy of the will; certification of the date and cause of
death of the testator; proof of publication of the petition, once a week for 3 consecutive weeks, in a newspaper of general circulation,
and thre testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the 3 instrumental witnesses to the will, whi, in
sustancer, testified that sometime in April, 1956, they were asked to witness the execution of the will of the late Jose. J. Javellana; that
on the said occasion, Jose J. Javellana signed the 4 pages of the will in their presence, and they, in turn, also signed each and evey

page thereof in the presence of the testator and of one another; and that these acts wetre acknowledge before notary public Fernando
Grey, Jr. on the same occasion.
For their part, the oppositor limited their evidence to the presentation of two letters in the Visayan dialect allegedly written by the
deceased, the signatures appearing thereon being identified by Jose Javellana, Jr. (Pepito) and Manuel Azaola, as those of the
deceased, for the sole purpose of comparing said signatures woth those appearing in the will. On December 10, 1957, the court a quo
issued an order allowing the probate of the will and directing the issuance of letters testamentary to Oscar Ledesma as executor
thereoif.. From this order, oppositors appealed to this Court charging the lower court of committing error in allowing oprobate of the will,
Exhibit C, on 2 grounds: (1) that the 3 sttesting witnesses failed to clearly and convincingly estabish the due execution of the will; and
(2) that petitioners failed to prove that the will was written in a language known to the testator.
The first basis of oppositor's appeal has no merit. It is true that witnesses, particularly Miss Eloisa Villanueva, apparently found difficulty
recalling who arrived first at the appointed place, or the order of the witnesses' signing the will, or failed to mention by name the
persons present at the time of the witnesses was signing the document. These details, however, are minor and significant and do not
enervate their positive testimony that at the execution of the will the testator, the 3 witnesses, the notary public and Atty. Vicente Hilado
were all together in the private office of the latter; that Jose Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental witnesses,
were unanimous in declaring that they actually saw the testator sign the will as well as each and every page thereof, and they, in turen,
affixed their signatures to all of its 4 pages. For the purpose of determining tjhe due execution of a will, it is not necessary that the
instrumental witnesses should give an accurate and detailed account of the proceeding, such as recalling the order of the signing of the
document by the dsaid wirtneese. It is sufficient that they have seen or at least were so situated at the moment that they could have
seen each other sign, had they wnated to do so. 1 In fact, in the instant case, at least two witnesses, Yulo and Guevarra, both testified
hat the testator and the 3 witnesses signed in the presence of each and every one of them.
With respect to the second ground, there is some merit in appellant's contention that the language requirement of the law on wills has
not been satisfactorily complied with in this case. Admittedly, there is want of expression in the body of the will itself or in its attestation
clause that the testator knew Spanish, the language in which it is written. It is true that there is no statutory provision requiring this and
that proof thereof may be established by evidence aliunde.2 But here, there is absolutely no such evidence presented by the petitionersappellees. Not even the petition for probate contains any allegation to this effect. No reference to it whatsoever is made in the appealed
order. In some cases, it is true, this lack of evidence was considered cured by presumptioin of knowledge of the language or dialect
used in the will, as where the will is executed in a certain province or locality, in the dialect currently used in such provimnce or locality
in which the testator is a native or resident, the presumption arises that the testator knew the dialect so used, in the absence of
evidence to the contrary; 3 or where the will is in Spanish, the fact that the testratrix was a "mestiza espaola", was married to a
Spaniard, made several trips to Spain, and some of her letters in her own handwriting submitted as evidence by the oppositor, are in
Spanish, give rise to the presumption that she knew the language in which the will was written, in the absence of proof to the contrary.4
In the case before us, no such or similar circumstances exist. On the contrary, there is evidence that the testator is a Visayan although
residing in San Juan, Rizal at the time of his death. The will was executed in the City of Manila. Undoubtedly, it cannot be said, and
there is no evidence, that Spaniards is the language currently used either in San Juan, Rizal, or Manila. It follows, therefore, that no
presumption can rise that the testator knew the Spanish Language.
But petitioner-appellees insist in their brief that the burden is on the oppositors to allege and prove that the testator did not know the
Spanish language in the face of the legal presumption that "the law has been obeyed", "that a will executed in the Philippines must be
presumed to have been executed in conformity with the laws of the Philippines". 5 and "that things have happened in accordance with
the ordinary course of nature and the ordinary habits of life", concluding that it woiuld certainly be contrary to the ordinary habits of life
for a person to execute his will in a language unknown to him. This, we believe, is, to use a colloquial term, being the question. If the
argument of counsel is correct, then every unopposed will may be probated upon its mere presentation in court, without need of
producing evidence regarding its execution. Counsel's statement is its own refutation.
We find, in the record stone indicia, although insufficient to give rise to the presumption, that the testator might, in fact, have known the
Spanish language. In oppositor's own Exhibit 3 (a letter admittedly written by the testator) appear the salutation "Querido Primo" and
the complimentary ending "Su primo" which are Spanish terms. Having found that al the formal requisites for the validity of the will have
been satisfactorily establishment, except the language requirement, we deem it in the interest of justice to afford the parties a
opportunity to present evidence, if they so desire, on this controverted issue.
Wherefore, let the records of this case be remanded to the court of origin for furhter proceedings as above indicated, without costs. It is
so ordered.

3.) Subscribed at the end thereof by the testator himself or the testators name
written by another person in the presence and by his express direction
3.a subscribed at the end thereof by the testator himself x x x
G.R. No. L-26545 December 16, 1927
Testate Estate of Florencia R. Mateo. PERFECTO GABRIEL, petitioner-appellee,
vs.
RITA R. MATEO, ET AL., opponents-appellants.
The judgment appealed from allowed the will of Florencia Mateo dated February 6, 1923, composed of two used sheets to probate. The
will appears to be signed by the testatrix and three witnesses on the left margin of each of the sheets, by the testatrix alone at the

bottom, and by the three witnesses after the attestation clause. The testatrix died on August 13, 1925. Opposition to such probate was
filed by Rita Mateo, the testatrix's sister, and by other relatives.
The three attesting witnesses to this will, testifying in this case, declared that the signature of the testatrix were written in their presence
and that they signed their names in the presence of the testatrix and of each other.
The testatrix from girlhood knew how to sign her name and did so with her right hand; but as the right side of her body later became
paralyzed, she learned to sign with her left hand and for many years thereafter, up to the time of her death, she used to sign with that
hand. Opponents allege that Florencia Mateo did not sign this will.
There are three salient arguments among those adduced by the opponents in support of their opposition.
The attesting witnesses testified that the testratrix signed before they did. The signatures of the testatrix on the left margin of the two
sheets of the will are between the signatures of the two witnesses Vidal Raoa and Julio Gabriel, and below her surname is the
signature of the other witness Felicisimo Gabriel. The signatures of Vidal Raoa and Julio Gabriel are on a level with each other, while
that of Felicisimo Gabriel is found a little lower down. The testatrix's signatures start on the line with Felicisimo Gabriel's signature, but
tend to rise and her surname reaches a level with Julio Gabriel's signature.
It is said that this direction of the testatrix's signature was due to the fact that when it was written Felicisimo Gabriel's signature was
already there, and so she had to write her surname upwards in order to avoid interfering with that Felicisimo Gabriel, which would have
been the case had she continued on the horizontal line on which she had written her first name. From this detail it is pretended to draw
the inference that the attesting witnesses signed before testatrix, contrary to their testimony that she singed before they did. This
deduction, however, is unnecessary. It may be inferred with equal, if not greater, logic that the testatrix signed before him, and when it
came to the witness Gabriel's turn, he, finding the space below the testatrix signature free, signed his name there. On the other hand, it
may be noted that the testatrix's other signature at the bottom of the will also shows a more or less marked tendency to rise,
notwithstanding the fact that there was no signature with which she might interfere if she continued to write in a straight horizontal line.
Furthermore, if, as the opposition alleges, the testatrix's signature is not genuine and was placed there by another person, it is strange
that the latter should have done so in such a way as to write it above Gabriel's signature while following the horizontal line, when this
could have been avoided by simply putting it a little higher. And this may be attributed to carelessness in the first case, but it cannot be
so explained in the second.
Attention is also called to the apparently different kinds of ink used by the testatrix in her signature and by the attesting witnesses.
Really an examination of these signature reveals a somewhat deeper intensity of ink in the signature of the testatrix than in those of the
attesting witnesses. It is alleged that this circumstance cannot be reconciled with the declaration of the attesting witnesses that they
used the same pen and ink as the testatrix. But, only one of these witnesses declared this. The other one was not sure of it and said
that he said that he did not perfectly remember this detail. The third scarcely made reference to this particular. At all events, this
apparent
difference
in
ink
may
be
merely
due supposing that the same ink and pen were used to the difference in pressure employed in writing these signatures, as is
reasonable to suppose when we consider that the testatrix was a paralytic and wrote with her left hand; or it may have been due to the
fact that the attesting witnesses dipped lightly in the ink while the testatrix dipped the pen so as to take up the ink from the bottom of the
well. To bring out this irregularity, the opposition presented the expert Del Rosario who asserted, among other things, that the signature
of the testatrix is more recent than that of the attesting witnesses. If this opinion is correct and if, as alleged, the testatrix's signature is
forged, it would mean that the forgers, after having prepared the will and made the witnesses sign, allowed sometime to elapsed before
forging the testatrix's signature, which supposition is not all probable, nor has it been explained.lawphi1.net
At all events, even admitting that there is a certain question as to whether the attesting witnesses signed before or after the testatrix, or
whether or not they signed with the same pen and ink, these are details of such trivial importance, considering that this will was signed
two years before the date on which these witnesses gave their testimony, that it is not proper to set aside the will for this reason alone.
The attesting witnesses to this will, who testified also as witnesses at the trial of this case, showed themselves to be intelligent and
honest, one of them being a lawyer of twelve year's practice, and there is no reason to reject their testimony, and to suppose that they
were untruthful in testifying, and that they falsified the will in question.
Lastly, attention is called to the unreasonableness of the testatrix in not leaving anything to the principal opponent, her sister Rita
Mateo, and to her nephews and nieces, to whom she had been so affectionate during life. But as to the affectionate relations between
the deceased and the opponents, only the opponent Rita Mateo testified, and she only stated that she was on good terms with her
sister during the latter's lifetime; that the said sister used to give her a sack or some gantas of rice, and, a times, a little money; that she
held all her nephews and nieces in equal regard. But even supposing that this were so, there is nothing strange in the testatrix having
left nothing to the opponents, or in her having left all of her estate to the only heir instituted in her will, Tomas Mateo, who is also one of
her nieces. And not only is it not strange, but it seems reasonable, since, according to the evidence of the testatrix when the former was
but 3 years old, and from then on up to the time of her death had never been separated from her.
The opposition presented Doctor Banks as expert. He testified that the signatures of the testatrix in the will are not genuine. The
petitioner, on the other hand, presented another expert, Pedro Serrano Laktao, who affirmed that these signatures are genuine. But,
over the testimony of these experts, we have the categorical and positive declaration of veracious witnesses who affirm that these
signatures were written by the testatrix herself. The judgment appealed from is affirmed, with costs against the appellants. So ordered.

G.R. No. L-33365

December 20, 1930

10

Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant,

vs.
FIDEL DIANCIN, ET AL., oppositors-appellees.
The will of the deceased Paulino Diancin was denied probate in the Court of First Instance of Iloilo on the sole ground that the
thumbmarks appearing thereon were not the thumbmarks of the testator. Disregarding the other errors assigned by the proponent of
the will, we would direct attention to the third error which challenges squarely the correctness of this finding.
The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on November 13, 1927. A thumbmark
appears at the end of the will and on the left hand margin of each of its pages in the following manner: "Paulino Diancin, Su Signo, Por
Pedro Diamante." The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is
detailed in nature, and disposes of an estate amounting approximately to P50,000.
For comparative purposes, Exhibit 8, a document of sale containing an admittedly genuine thumbmark of Paulino Diancin, was
presented. Photographs of the thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in evidence. One, Carlos J.
Jaena, attempted to qualify as an "expert," and thereafter gave as his opinion that the thumbmarks had not been made by the same
person .One, Jose G. Villanueva, likewise attempted to qualify as were authentic. The petition of the proponent of the will to permit the
will to be sent to Manila to be examined by an expert was denied. On one fact only were the opposing witnesses agreed, and this was
that the ink used to make the thumbmarks on the will was of the ordinary type which blurred the characteristics of the marks, whereas
the thumbmark on Exhibit 8 was formed clearly by the use of the special ink required for this purpose. The trial judge expressed his
personal view as being that great differences existed between the questioned marks and the genuine mar.lawphi1>net
The requirement of the statute that the will shall be "signed" is satisfied not only the customary written signature but also by the
testator's or testatrix' thumbmark .Expert testimony as to the identity of thumbmarks or fingerprints is of course admissible. The method
of identification of fingerprints is a science requiring close study .Where thumb impressions are blurred and many of the characteristic
marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of
the impressions, the court is justified in refusing to accept the opinions of alleged experts and in substituting its own opinion that a
distinct similarity in some respects between the admittedly genuine thumbmark and the questioned thumbmarks, is evident .This we do
here. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3 Chamberlayne on the Modern Law of Evidence, sec. 2561,
notes 3.)
There is another means of approach to the question and an obvious one. The three instrumental witnesses united in testifying
concerning the circumstances surrounding the execution of the will. It was stated that in addition to the testator and themselves, on
other person, Diosdado Dominado, was present. This latter individual was called as a witness by the oppositors to the will to identify
Exhibit 8. He was later placed on the witness stand by the proponent on rebuttal, and thereupon declared positively that he was the one
who prepared the will for the signature of Paulino Diancin; that the thumbmarks appearing on the will were those of Paulino Diancin,
and that he saw Paulino Diancin make these impressions. The testimony of a witness called by both parties is worthy of credit.
We reach the very definite conclusion that the document presented for probate as the last will of the deceased Paulino Diancin was, in
truth, his will, and that the thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly, error is found, which
means that the judgment appealed from must be, as it is hereby, reversed, and the will ordered admitted to probate, without special
finding as to costs in this instance.

[G.R. No. 9150. March 31, 1915. ]

MARIANO LEANO, Petitioner-Appellant, v. ARCADIO LEAO, objector-appellee.
1. WILLS; SIGNATURE BY MARK. The right of a testatrix to sign her will by mark, executed animo testandi, sustained.
2. ID., ID. The placing of a cross, by a testatrix, opposite her name attached to an instrument purporting to be her
last will and testament is a sufficient compliance with the requirements of section 618 of the Code of Civil Procedure as
to the form and manner in which such instruments should be signed.
The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed her cross against her name
attached by some other person to the instrument offered for probate which purports to be her last will and testament,
in the presence of the three witnesses whose names are attached to the attesting clause, and that they attested and
subscribed
the
instrument
in
her
presence
and
in
the
presence
of
each
other.
We are of the opinion that the placing of the cross opposite her name at the conclusion of the instrument was a
sufficient compliance with the requirements of section 618 of the Code of Civil Procedure, which prescribes that except
where wills are signed by some other person than the testator in the manner and form therein indicated, a valid will
must be signed by the testator. The right of a testator to sign his will by mark, executed animo testandi, has been
uniformly sustained by the courts of last resort of the United States in construing statutory provisions prescribing the
mode of execution of wills in language identical with, or substantially similar to that found in section 618 of our code,
which was taken from section 2349 of the Code of Vermont. (Page on Wills, par. 173, and the cases there cited in
support
of
the
doctrine
just
announced.)
The trial judge was of contrary opinion, and declined to admit the instrument to probate as the last will and testament
of the decedent. We are of opinion. however, that the evidence of record satisfactorily establishes the execution of that
instrument as and for her last will and testament in the manner and form prescribed by law.
The judgment entered in the court below should therefore be reversed, without costs in this instance, and the record
remanded to the court below, where judgment will be entered admitting the instrument in question to probate in

11

accordance

with

the

prayer

of

G.R. No. L-4067

the

petitioner.

So

ordered.

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is
written in the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero Mercado was signed by himself and also by
us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the continuation of
this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them were signed in the presence of the testator and witnesses,
and the witnesses in the presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that
the will was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request
of the testator in the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the
testator's name under his express direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is
appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because
the cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this Court in the
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which
he signed his name. After mature reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in the attestation clause as to the signing of
the will by the testator in the presence of the witnesses, and by the latter in the presence of the testator and of each other.

12

C.A. No. 8075

March 25, 1946

TRINIDAD NEYRA, plaintiff-appellant,

vs.
ENCARNACION NEYRA, defendant-appellee.

On October 25, 1939, Trinidad Neyra filed a complaint against her sister, Encarnacion Neyra, in the Court of First Instance of the City of
Manila, for the recovery of one-half () of the property mentioned and described therein, which had been left by their deceased father,
Severo Neyra, and which had been previously divided equally between the two extrajudicially, demanding at the same time one-half ()
of the rents collected on the said property by the defendant Encarnacion Neyra. The defendant filed an answer admitting that the
property mentioned and described therein was community property, and at the same time set up counterclaims amounting to over
P1,000, for money spent, during the last illness of their father, and for money loaned to the plaintiff.
After the trial of the case, the court found that the plaintiff was really entitled to one-half () of the said property, adjudicating the same
to her, but at the same time ordered said plaintiff to pay to the defendant the sum of P727.77, plus interests, by virtue of said
counterclaims.
Plaintiff Trinidad Neyra appealed from the said decision, to the Court of Appeals for Manila, alleging several errors, attacking the
execution and validity of said agreement; and on November 10, 1942, said appeal was dismissed, pursuant to the to an agreement or
compromise entered into by the parties, as shown by the corresponding document, dated November 3, 1942, which was filed in the
case the following day, November 4, 1942.
In the meanwhile, Encarnacion Neyra, who had been sickly for about two years, unexpectedly died, on November 4, 1942 at the age of
48, allegedly from heart attack, as a consequence of Addison's disease from which, it was claimed, she had been suffering for
sometime.
In view of the decision of the Court of Appeals, dated November 10, 1942, dismissing the appeal, by virtue of said agreement or
compromise, Atty. Lucio Javillonar, claiming to represent Encarnacion Neyra, who had died since November 4, 1942, and other
relatives of hers, filed a petition, dated November 23, 1942, asking for the reconsideration of said decision of the Court of Appeals,
dismissing the appeal, claiming that the alleged compromise or agreement, dated November 3, 1942, could not have been understood
by Encarnacion Neyra, as she was already then at the threshold of death, and that as a matter of fact she died the following day; and
that if it had been signed at all by said Encarnacion Neyra, her thumbmark appearing on said document must have been affixed thereto
by Trinidad Neyra's attorney, against Encarnacion's will; and that the court had no more jurisdiction over the case, when the alleged
agreement was filed on November 4, 1942, at the instance of Trinidad Neyra, as Encarnacion was already dead at the time.
The principal question to be decided, in connection with said petition for reconsideration, is whether or not said compromise or
agreement had been legally executed and signed by Encarnacion Neyra, on November 3, 1942. Trinidad Neyra maintains the
affirmative.
The voluminous evidence, testimonial and documentary, adduced by the parties, in this case, has fully established the following facts:
That Severo Nayra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his first marriage,
named Encarnacion Neyra and Trinidad Neyra, and other children by his second marriage; That after the death of Severo Neyra, the
two sisters, Encarnacion Neyra and Trinidad Neyra, had serious misunderstandings, in connection with the properties left by their
deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance
of Manila, concerning said properties. In the first case, filed in March 31, 1939, Trinidad Neyra and others demanded by Encarnacion
Neyra and others the annulment of the sale of the property located at No. 366 Raon Street, Manila which was finally decided in favor of
the defendants, in the court of first instance, and in the Court of Appeals, on December 21, 1943 (G.R. No. 8162); and the second is the
instance case.
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 of the whole blood, 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

13

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 Atty. Ricardo Sikat, and gave him instructions for the preparation of a
new will; that Atty. Sikat, instead of preparing a new will, merely prepared a draft of a codicil, 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 religious organization, for their consideration and acceptance; but it was also rejected.
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 requested
that holy mass be celebrated in her house at No. 366 Raon Street, City of Manila, so that she might take holy communion; that Mons.
Fernandez caused the necessary arrangements to be made, and, as a matter of fact, on November 1, 1942, holy mass was solemnized
in her house by Father Teodoro Garcia, also of the Quiapo Church, on which occasion, Encarnacion Neyra, who remained in bed, took
holy communion; that after the mass, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters,
Encarnacion and Trinidad Neyra. Encarnacion accepted said advise and, at about noon of the same day (November 1, 1942), sent
Eustaquio Mendoza to fetch her sister Trinidad, who came at about 2:30 that same afternoon; that the two sisters greeted each other in
most affectionate manner, and became reconciled and two had a long and cordial conversation, in the course of which they also talked
about the properties left by their father and their litigations which had reached the Court of Appeals for the City of Manila, the instant
case being the second, and they agreed to have the latter dismissed, on the condition that the property involved therein should be
given exclusively to Trinidad Neyra, that the latter should waive her share in the rents of said property collected by Encarnacion, and
the Trinidad had no more indebtedness to Encarnacion. They also agreed 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 for the
preparation of her last will and testament; that Attorney Panis prepared said document of compromise as well as the new will and
testament, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to Encarnacion's express instructions, and
the two documents were prepared, in duplicate, and were ready for signature, since the morning of November 3, 1942; that in the
afternoon of that day, of compromise and last will and testament to Encarnacion Neyra, slowly and in a loud voice, in the presence of
Father Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, Trinidad Neyra, and others, after which he asked her if their terms were
in accordance with her wishes, or if she wanted any change made in said documents; that Encarnacion Neyra did not suggest any
change, and asked for the pad and the two documents, and, with the help of a son of Trinidad, placed her thumbmark at the foot of
each one of the two documents, in duplicate, on her bed in the sala, in the presence of attesting witnesses, Dr. Moises B. Abad, Dr.
Eladio R. Aldecoa and Atty. Alejandro M. Panis, after which said witnesses signed at the foot of the will, in the presence of Encarnacion
Neyra, and of each other. The agreement was also signed by Trinidad Neyra, as party, and by Dr. M. B. Abad and Eustaquio Mendoza,
a protege, as witnesses.
Father Teodoro Garcia was also present at the signing of the two documents, at the request of Encarnacion Neyra.
The foregoing facts have been established by the witnesses presented by Trinidad Neyra, who are all trustworthy men, and who had
absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while three of the attesting witnesses
are professional men of irreproachable character, who had known and seen and actually talked to the testatrix.
Petitioner Teodora Neyra, half sister of Encarnacion, and her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter
of petitioner Maria Jacobo Vda. de Blanco, substantially corroborated the testimony of the witnesses presented by Trinidad Neyra, with
reference to the signing of documents, in the bedroom of Encarnacion Neyra, in the afternoon of November 3, 1942.
Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz testified, however, that when the thumbmark of Encarnacion Neyra was
affixed to the agreement in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting
witnesses were not present, as they were in the caida.
But Ceferina de la Cruz also stated that the attesting witnesses signed the documents thumbmarked by Encarnacion Neyra, in
the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyra's, thumbmark was
affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and one Ildefonso del Barrio, when Encarnacion was
already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature of effects of Addison's disease, is absolutely unreliable.
He had never seen or talked to the testatrix Encarnacion Neyra.
According to medical authorities, persons suffering from Addison's disease often live as long as ten (10) years, 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. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250-1253; McCrae, Osler's
Modern Medicine, 3d ed., Vol. V, pp. 272-279.)
And it has been conclusively shown that Encarnacion Neyra died on November 4, 1942, due to a heart attack, at the age of 48, after an
illness of about two (2) years.
In connection with mental 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 the alleged medical experts.

14

Insomnia, in spite of the testimony of two doctors, who testified for the opponents to the probate of a will, to the effect that it tended to
destroy mental capacity, was held not to effect the full possession of 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
condition 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 was 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 Almojuelavs. 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 the execution of 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 he
afternoon of November 3, 1942, Encarnacion Neyra talked to her that they understood each other clearly, thus showing that the testatrix
was really of sound mind, at the time of 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 logical conclusion is that Encarnacion Neyra was of sound mind and possessed the
necessary testamentary and mental capacity, at the time of the execution of the agreement and will, dated November 3, 1942.
The contention that the attesting witnesses were not present, at the time Encarnacion Neyra thumbmarked the agreement and will in
question, on her bed, in the sala of the house, as they were allegedly in the caida, is untenable. It has been fully shown that said
witnesses were present, at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix
was lying on her bed. The true test is not whether they actually saw each other at the time of the signing of the documents, but whether
they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it all in this case.
(Jaboneta vs.Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the agreement and will in question is equivalent to her
signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.)
Teodora Neyra and her principal witnesses are all interested parties, as they are children of legatees named in the will, dated
September 14, 1939, but eliminated from the will, dated November 3, 1942.
Furthermore, the testimony of Teodora Neyra and her witnesses, to the effect that there could have been no reconciliation between the
two sisters, and that the thumbmark of Encarnacion Neyra was affixed to the documents embodying the agreement, while she was
sleeping, on November 3, 1942, in their presence; and that her thumbmark was affixed to the will in question, when she was already
dead, in the morning of November 4, 1942, within their view, is absolutely devoid of any semblance of truth. Said testimony is contrary
to common sense. It violates all sense of proportion. Teodora Neyra and her witnesses could not have told the truth; they have testified
to deliberate falsefoods; and they are, therefore, absolutely unworthy of belief. And to the evidence of the petitioners is completely
applicable the legal aphorism falsus in uno, falsus in omnibus. (Gonzales vs. Mauricio, 53 Phil., 728, 735.)
To show the alleged improbability of reconciliation, and the execution of the two documents, dated November 3, 1942, petitioners have
erroneously placed great emphasis on the fact that, up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter
enemies. They were banking evidently on the common belief that the hatred of relatives is the most violent. Terrible indeed are the
feuds of relatives and difficult the reconciliation; and yet not impossible. They had forgotten that Encarnacion Neyra was a religious
woman instructed in the ancient virtues of the Christian faith, and hope and charity, and that to forgive is a divine attribute. They had
also forgotten that there could be no more sublime love than that embalmed in tears, as in the case of a reconciliation.
It was most natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is
the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must have evoked in her the
tenderest recollections of family life. And believing perhaps that her little triumphs had not always brought her happiness, and that she
had always been just to her sister, who had been demanding insistently what was her due, Encarnacion finally decided upon
reconciliation, as she did not want to go to her eternal rest, with hatred in her heart or wrath upon her head. It was, therefore, most
logical that Encarnacion should make Trinidad the benificiary of her generosity, under her last will and testament, and end all her
troubles with her, by executing said agreement, and thus depart in perfect peace from the scenes of her earthly labors.
It having been shown that the said compromise or agreement had been legally signed and executed by Encarnacion Neyra on
November 3, 1942, in the presence of credible and trustworthy witnesses, and that she wascompos mentis and possessed the
necessary testamentary and mental capacity of the time; the petition for the reconsideration filed by Atty. Lucio Javillonar, on November
23, 1942, on behalf of a client, Encarnacion Neyra, who had been dead since November 4, 1942, and some of her relatives, who have
appeared, in accordance with the provisions of section 17 of Rule 3 of the Rules of Court, is hereby denied; and the decision of the
Court of Appeals for Manila, dated November 10, 1942, dismissing the appeal, is hereby re-affirmed, without costs. So ordered.

15

3.b x x x or the testators name written by another person in his presence and
by his express direction.
[G.R. No. 2586. January 19, 1906. ]
TOMAS GUISON, Petitioner-Appellant, v. MARIA CONCEPCION, Respondent.
1. WILLS; INABILITY TO SIGN; SIGNATURE BY ANOTHER. The testatrix was not able to sign her name to the will,
and she requested another person 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. (Following Ex No. 2002, August 18, 1905.)
Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The last part of the will is as follows:
"Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y Felix Polintan, de Manila, Islas Filipinas, y por no yo poder firmar, firma a mi
ruego el mismo Feliciano Maglaqui, en mi presencia y de los mencionados testigos, quienes tambien suscriben, cada uno de ellos en presencia de los
otros y la mia.
"(Firmado) FELICIANO MAGLAQUI.
"(Firmado) AMBROSIO REYES.
"(Firmado) MARIANO DE LEON.
"(Firmado) FELIX POLINTAN.
"Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que Filiciano Maglaqui, a ruego de la Sra. Jacoba Concepcion Salcedo y en
presencia de la misma y la nuestra, firmo el testamento que antecede; y que cada uno de nosotros lo firmo en presencia de los otros y de dicha
testadora.
"Manila, tres de Enero de mil novecientos cuatro.
"(Firmado) AMBROSIO REYES.
"(Firmado) MARIANO DE LEON.
"(Firmado) FELIX POLINTAN."

It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on the will, wrote his
own. Probate of the will was refused in the court below on the ground that the name of the testatrix was not signed
thereto, and the petitioner has appealed. The question presented has been decided adversely to the appellant in the
following cases: Ex parte Pedro Arcenas Et. Al., 1 No. 1708, August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio
Delfin Santiago, 2 No. 2002, August 18, 1905 (4 Off. Gaz., 507.)
The judgment of the court below is affirmed, with the costs of this instance against the appellant, and after the
expiration of twenty days judgment should be entered in accordance herewith and the case remanded to the court
below for execution. So ordered.
G.R. No. L-4132
March 23, 1908
In the matter of the will of MARIA SIASON Y MADRID DE LEDESMA, Probate proceedings.

16

In this special proceedings for the legalization of a will, the Court of First Instance refused probate on the ground that the instrument
was not subscribed by the witnesses in the presence of the testatrix and of each other as required by section 618 of the Code of Civil
Procedure.
The testatrix was ill and confined to her house, the execution of the will taking place in the sala where she lay upon a sofa. The
witnesses differ as to whether the testatrix from where she lay could read what was written at the table; and the first witness, after
signing, went away from the table. These two circumstances do not impair the validity of the execution of the will. The witnesses being
in the same apartment were all present and the statute does not exact that either they are the testator shall read what has been written.
Had one of the witnesses left the room or placed himself so remotely therein as to be cut off from actual participation in the
proceedings, then the subscription might not have taken place in his presence within the meaning of the law.
A second objection is suggested on this appeal, that the signature to the instrument is defective. It ends in this form:
At the request of Seora Maria Siason.
CATALINO GEVA.
T. SILVERIO. FRUCTUOSO G. MORIN.
RAFAEL ESPINOS.

Section 618 of the Code of Civil Procedure reads as follows: Requisites of will. No will, except as provided in the preceding section,
shall be valid to pass any estate, real of 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 each of the other. The attestation shall estate 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.
The misunderstanding of this section arising from the incorrect rendering of into Spanish in the official translation was corrected by what
was said in the decision of this court in Ex parte Arcenas (4 Phil. Rep., 700). Confusion has also come out of the different wording of
the two clauses of this section, the one specifying the requisites of execution and the other those of the attestation clause. The
concluding sentence of the section, however, makes clear that the former and not the latter is to control. Consequently 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," and the
question presented in this case is, Are the words "Seora Maria Siason" her name written by some other person? They undoubtedly are
her name, but occurring as they do after the words "at request of," it is contended that they form a part of the recital and not a signature,
the only signature being the names of the witnesses themselves. InGuison vs. Concepcion (5 Phil. Rep., 551) it was held that there was
no signature, although the attestation clause which followed the will contained the name of the testatrix and was thereafter signed by
the witnesses. The distinction between that case and the present one is one of the extreme nicety, and in the judgment of the writer of
this opinion should not be attempted. The majority of the court, however, are of the opinion that the distinction is a tenable one
inasmuch as in the Concepcion will the name of the testatrix occurred only in the body of the attestation clause, after the first signatures
of the witnesses, whereas in this will it immediately follows the testament itself and precedes the names of the witnesses.
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.1 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 form substantially equivalent.
The decision of the court below is reversed, without costs, and that court is directed to admit the instrument before it to probate as the
last will of the testatrix. So ordered.
G.R. No. L-5149

March 22, 1910

GREGORIO MACAPINLAC, petitioner-appellee,

vs.
MARIANO ALIMURONG, opponent-appellant.

Simplicia de los Santos having died on June 19, 1907, her surviving husband, Gregorio Macapinlac, submitted her will to the Court of
First Instance of Pampanga for probate. Macario Alimurong, a nephew of the deceased, opposed the proceedings and requested that
"the will of the deceased, Doa Simplicia de los Santos, be declared null and void for either of the two reasons" which he expresses,
and which are:
(1) Because the will was not executed and signed by the witnesses in accordance with the provisions of the Code of Civil Procedure
now in force.
(2) Because it was executed under duress and undue and illegal influence on the part of the persons benefited thereby or of a person
acting in their interests.
The trial having been held and evidence adduced, the trial court declared the following facts to be proven:
(1) That at 6 o' clock on the evening of June 17, 1907, Simplicia de los Santos, who was sick but in full possession of all her
faculties, executed her will, which is the document attached to the record, Exhibit No. 1 of the petitioner.
(2) That after the execution of such will on Monday, the testatrix died early on the morning of the following Wednesday.
(3) That, as a preliminary act, a rough copy of the said will was made up, which rough copy was read to the testatrix, and the
latter ordered an additional clause to be added thereto, in connection with a legacy that she desired to make in favor of some
of her old servants who and rendered good service.

17

(4) That, after the rough copy was amended by the addition of the above-mentioned clause, a clear copy thereof was made up
and was again read to the testatrix, who approved it in all of its parts, and as she was unable to sign, she requested Amando
de Ocampo to sign for her and the latter wrote the following words with his own hand. "At the request of the testatrix
D.a Simplicia de los Santos, I signed Amando de Ocampo." Immediately afterwards and also in the presence of the same
testatrux and of each other, the witnesses Jose Juico, Gabino Panopio, Eusebio dayao, Juan Angeles, Jose Torres, Alejo San
Pedro, and Gregorio Sangil signed at the bottom of the will.
In view of the said factsthe lower court concludesthe will executed by Simplicia de los Santos must be admitted to
probate. The provisions of section 618 of the Code of Procedure in Civil Actions and Special Proceedings are fully complied
with. The will bears the name of the testatrix written by Amando de Ocampo in her presence and by her express direction, and
has been witnessed and signed by more than three trustworthy witnesses, in the presence of the testatrix and of each other.
The judgment was as follows:
It is ordered that exhibit No. 1, duly translated, be probated as the last will of Simplicia de los Santos and that the
corresponding letters of administration be issued in favor of Gregorio Macapinlac, the surviving husband of the said Simplicia
de los Santos, the protest of the adverse party being dismissed, with the costs.
The opponent appealed, and the appeal having been submitted to this court, together with the allegations of both parties, it appears
that the appellant has alleged the following assignments of error:
1 That the proceedings were not dismissed, because the witnesses for the petitioner did not sign their respective testimony.
2 That it was declared that the will of the deceased Simplicia de los Santos was executed with a legal formalities.
3 That it was not declared that the will of the deceased Simplicia de los Santos was executed under undue and illegal influence on the
part of the persons benefited thereby or of a person acting in their interests.
With reference to the first assignment of error, inasmuch as no question was raised in the first instance in the form of a motion and
denied by the court below and exception taken and brought up on appeal, there is no ground on which we may take into consideration
such assignment and decide a matter not covered by the appeal and with reference to which a decision by this court is not properly
sought.
In regard to the second assignment, in view of the facts set forth and of the findings made by the trial court, according to the
preponderance of the evidence, it can not be rationally shown that the conclusion should have been otherwise, nor does it appear that
the conclusion infringes any statute or legal doctrine for the enforcement of which this court should review the evidence.
But, besides the question of fact, the appellant submit another question of law, viz, whether or not the will was signed in accordance
with the law, and he affirms that it was not, inasmuch as the law requires that when a person signs in place of the testator he should
write the name of the latter in the will as the signature; this was not done by Amando de Ocampo in the will in question, as he did not
sign it with the name of testatrix.
It is shown by the evidence that the will was wholly written in the handwriting of the subscribing witness, Gregorio Sangil, and at the foot
thereof the following words appear in a new paragraph and sufficiently apart:
At the request of the testatrix, Da. Simplicia de los Santos, I signed.
For Simplicia de los Santos.

Amando de Ocampo.

As a question of fact, the authenticity of the words "For Simplicia de los Santos," prefixed to the signature, is impugned as not having
been written at the time of the execution of the will.
And, as a question of law, it is claimed that the form of signing for the testatrix "At the request of the testatrix Da. Simplicio de los
Santos, I signed: Amando de Ocampo," is not in accordance with the requirements of the law.
Regarding the first question, the trial court concluded that "the posterior insertion of the words 'For Simplicia de los Santos' can not
affect the validity of the will."
Therefore, it can be considered as nonexistent, and the other as the only fore of signature by the testatrix, the authenticity of which has
not been impugned or which the trial court admits as conclusive, and is only one taken into account in its findings of fact. 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 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.
With reference to the third assignment of error, the court below found:

18

. . . and the influence which, according to the adverse party, was exercised upon the testatrix by Father Lupo is not shown.
While the rough copy of the will was being made, Father Lupo simply discussed with those who were making the rough draft
the question of the more appropriate use of some phrases inPampango. It is true that he went in and out of the room of the
testatrix several times, and that from time to time he showed a relic to her, but there is no evidence to indicate that Father
Lupo influenced the testatrix directly and caused her to be influenced in any way.
Against this finding of fact, based upon the preponderance of the evidence as weighed by the trial court, we find no reason or ground
for deciding this question of fact in any other way. We find no data showing that the person above mentioned directly influenced the
provisions of the will; that such is the illegal and improper influence which the law condemns as overcoming that freedom by which the
last will of a man must be expressed.
The judgment appealed from is hereby affirmed, with the costs of this instance against the appellant. So ordered.

G.R. No. 3907

ROMAN ABAYA, petitioner-appellant,
vs.
DONATA ZALAMERO, respondent-appellee.
On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna, for the allowance of the will executed
by Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th of October, 1905, and produced in court the said will, which
was written in Tagalog dialect. Donata Zalamero opposed the petition, alleging that the will had been executed under pressure and
unlawful and improper influence on the part of those who were to benefit thereby, and that it had not been executed and signed in
accordance with the provisions of section 618 of the Code of Civil Procedure. A day was appointed for the hearing and in the course of
the proceedings the witnesses offered by both parties were examined; on the 10th of January, 1907, the court refused to admit the will
of said Juan Zalamero, as requested by Roman Abaya; Abaya appealed from the decision and moved for a new trial which motion has
not been finally acted upon by the court; for this reason the petitioner, now before this court, still insists thereon for the effects of the
appeal which he had interposed, and has submitted a certified copy of the proceedings to which the assignment of errors presented by
him refers.

19

Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the 29th of October, 1905, under lawful
pressure and influence exercised by those who were thereby benefited; and second, that the said will was not executed and signed in
accordance with the provisions of section 618 of the Code of Civil Procedure .
After an examination of the facts alleged and the evidence adduced by both parties, and considering the case according to the rules of
common sense and sound criticism, it must necessarily be admitted that the weight and preponderance of the evidence prove in a
conclusive manner the authenticity and genuineness of the said will as the real and true expression of the will of the testator, Juan
Zalamero, and for this reason the first point should have been decided by the court below in a negative sense.
It was not expressly pretended that the said will should be disallowed under the provisions of section 634 of the Code of Civil
Procedure, either because the testator was insane or otherwise mentally incapable to execute such instrument at the time of its
execution, or because it was procured by undue and improper pressure and influence on the part of the beneficiaries; nor even if such
request had been made, could the nullity of the said will have been judicially declared in view of the lack of satisfactory proof of the
presence of such circumstances. Therefore, the court, in order to disallow the petition, had to disregard them and rest the decision upon
the allegation that the will was not executed in accordance with the provisions of section 618 of the Code of Civil Procedure.
Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in question was executed with the
requirements established by the law in force, and that, therefore, the decision upon the second point should be against the opponents
to the petition.
It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator and at his own request, one of the
witnesses to the will, Mariano Zaguirre, wrote with his own hand the name and surname of Juan Zalamero, the testator, and his
presence, and that the latter put a cross between them and a note stating that what had been written before the name and surname of
the said Juan Zalamero, with the cross placed at the foot thereof, was his testament and contained his last will as stated by him when
he directed the execution thereof in the presence of the three witnesses who subscribed it in his presence, and in the presence of each
other.
It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name and surname at the end of his will, did
not affix his own signature immediately below the name and surname of Juan Zalamero and below the cross placed by the latter with
the words "by request of the testator Juan Zalamero;" but in the said will are clearly stated the reason why it was not signed by the
testator himself as also the request he made to the witness Zaguirre, and a repetition thereof was not necessary; further, that this same
witness, upon being requested, wrote with his own hand the name and surname of the testator, who afterwards placed the cross
between them, stating that it was his statement, all of which was written immediately after the said name and surname of the testator
and the cross made by him, and the same was subscribed by the three witnesses in the manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the law have been complied with, namely, that three
witnesses were present at the execution of the will of Juan Zalamero at the date mentioned therein; that they heard his statement that
the said instrument, written and drawn up under his direction, contained his last will; that they saw and witnessed when, at the express
request of the testator, and under his direction, the witness, Mariano Zaguirre, wrote at the foot of the will the name and surname of
Juan Zalamero, and when the latter put the cross between his written name and surname, each of the witnesses subscribing it at the
time and in the presence of each other.
For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should be reversed and that it
be declared, as we now do, that the will executed by the late Juan Zalamero while in life, under date of the 29th of
October, 1905, was executed in accordance with the law, and that therefore it should be duly admitted in order that it
may produce all consequent legal effects, and it is so ordered without any special ruling as to costs.

G.R. No. 1708

August 24, 1905

EX PARTE PEDRO ARCENAS, FELISBERTA ACEVEDO, ET AL. Probate Proceedings.

On October 12, 1901, before Felipe Villasis y Castaeda, a notary public of the municipality of Capiz, and in the presence of three
witnesses, residents thereof, Jose de los Santos e Isada, also a resident of that city, executed his last will and testament, and to this
effect exhibited to the notary and attesting witnesses a private document purporting to be his last will, and stated that he wished to
acknowledge it as such; but the said testator, on account of his ill health, did not sign the same, and at his own request the witness
Naval Amisola Vidal y Reyes signed in his stead. The other witnesses and the notary public also signed the testament.
Subsequently Pedro Arcenas, one of the executors under the said will, presented the same for probate, the usual proceedings were
had in the Court of First Instance, and notwithstanding the fact that the parties interested were cited, no one appeared to oppose the
probating of the said will. Sandalio Garcia and Andres Protasio, two of the witnesses to the will, were examined. They testified under
oath that the testator had voluntarily executed the same but on account of his ill health did not sign, the witness Naval A. Vidal signing
in his stead at the testator's request; they further testified that the attesting witnesses had signed the will in the presence of each other.

20

At this stage of the proceedings the clerk presented to the judge the register of public instruments for the year 1901, where the original
of the said will was recorded.
The two heirs named in the will, to wit, Felisberta and Jose Acevedo, petitioned the court on the 28th day of September, 1902, to
examine the notary Villasis, and the witness Naval Amisola Vidal as to the authenticity of the will itself, but the court, without passing
upon this petition, in a decision rendered October 1, 1903, disallowed the said will on the ground that it was not signed by the testator
Jose de los Santos, nor by the testator's name written by Naval A. Vidal, as required by section 618 of the Code of Civil Procedure, and
could not, therefore, be considered as the last will and testament of the said Jose de los Santos. From this decision the said heirs
appealed to this court.
The Code of Civil Procedure went into effect on the 1st day of October, 1901, as provided, in Act No. 212 of the Philippine Commission,
approved August 31, 1901, so that the said Code of Civil Procedure was in full force and effect on the 12th day of October of the same
year when the will in question was executed by the testator, Jose de los Santos e Isada, who, as well as all the citizens of the
Philippines Islands, was obliged to conform in the execution of wills with the law governing the subject.
Section 618 of the Code of Civil Procedure, which relates to the requisites of will, repealed, among others article 695 of the Civil Code,
the second paragraph of which reads as follows: Should the testator declare that he does not know how, or is not able, to sign, one of
the attesting witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall also be done if any
one of the witnesses can not sign.
This provision of the Civil Code has been expressly modified by the provisions of section 618 of the Code of Civil Procedure, which
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
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..
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is
unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary certifying
thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is
necessary that the testator's name be written by the person signing in his stead in the place where he would have signed if he knew
how or was able so to do, and this in the testator's presence and by his express direction; so that a will signed in a manner different
than that prescribed by law shall not be valid and will not be allowed to be probated.
Where a testator does not know how, 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 English text of the before-mentioned section 618 of the Code of Civil Procedure is clear, this section not having been modified
since the promulgation of the said code, and if the Spanish translation of said code was incorrect in the first two editions it has at last
been corrected in a third edition thereof, and, in our opinion, the correct Spanish translation of the said section is as quoted in this
decision.
There is lacking in the testament in question an essential requisite which affects its validity, the omission of which can not be excused
by the erroneous translation in the first two editions of the said code, which translation is not such as would justify a failure to comply
with its provisions, since Act No. 63 of the Philippine Commission, approved December 21, 1900, provides that in the construction of all
acts which have been enacted, or shall be enacted, by that legislative body the English text shall govern, except that in obvious cases
of ambiguity, omission, or mistake the Spanish text may be consulted to explain the English text. In this case the English text is clear
and, in the opinion of the American members of this court, there is no ambiguity, omission, or mistake which would require a
consultation of the Spanish text to explain it.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the
testator and his own name in one of the forms given above. He did not do so, however, and this failure to comply with the law is a
substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to
oppose it.
The trail court states in its decision that from the evidence introduced the court is convince that the document in question contained the
last will of the deceased as to the disposition of his property; but no decision in this case would be proper unless in strict accordance
with the law, no matter how harsh such decision may be. The allowance of this defective will would be a violation of the law.
The judgment appealed from should be affirmed and the will in question, executed at Capiz on the 12th of October, 1901, by the
deceased, Jose de los Santas e Isada, is hereby disallowed. After the expiration of twenty days judgment shall be entered accordingly
and the case remanded to the Court of First Instance for proceedings in conformity herewith. So ordered.
G.R. No. L-4454

April 12, 1909

Ex parte JUAN ONDEVILLA, ET AL., petitioners-appellants.

21

These proceedings were instituted for the probate of the will of Pascuala Olaguer, deceased. The lower court refused the probate and
from that decision the petitioners have appealed to this court.
There is no doubt that the testament in question was executed before a sufficient number of witnesses. This was acknowledged to be
true in the decision appealed from. The only matter at issue is the sufficiency of form in which the name of the testatrix appears at the
foot of the will. The testatrix could not sign at the time she executed the will and requested one named Fructuoso Llenaresa to sign on
her behalf, which the latter did by writing her name and signing at the foot of the document as follows:
For Pascuala Olaguer,
Fructuoso Llenaresa.
The judge below was of the opinion that this manner of writing the name of the testatrix is not in accordance with the law, and this was
his only reason for refusing the probate of the will, because, as he says, "it is always better that, where a testator can not sign his
name, the person signing for him should only write the name of the testator, and that the latter should make a cross which should be
witnessed and attested by the witnesses to the act."
Section 618 of the Code of Procedure in Civil Actions, which prescribes the form of the execution of wills, provides in part as follows:
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.
As will be seen, the law does not prescribe the specific form in which the name of the testator should be affixed at the foot of the will
when written at his request by another person. The only thing required by law is that the will shall be bear the name of the testator. In
construing this legal provision this court has held and established in case No. 1708, Ex parte Pedro Arcenas et al. (4 Phil. Rep., 700),
that "where a testator does not know how, 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.' "
This last form is precisely the one which has been used in the will in question, with the exception of the words the testator which were
omitted. It is unnecessary to say that such omission does not nor can it in anyway affect the validity of the will, because the essential
thing is the name of the testator, which name, we hold, was duly written in the aforesaid will.
The order appealed from is reversed, and the will is hereby declared valid and ordered admitted to probate. So ordered.

G.R. No. L-6285

February 15, 1912

22

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284,1just decided by this
court, wherein there was an application for the probate of an alleged last will and testament of the same person the probate of whose
will is involved in this suit.
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 of the will was contested and opposed by a number of the relatives of the deceased on various grounds, among them that
a later will had been executed by the deceased. The will referred to as being a later will is the one involved in case No. 6284 already
referred to. Proceeding for the probate of this later will were pending at the time. The evidence of the proponents and of the opponents
was taken by the court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to probate upon the sole ground that the handwriting
of the person who it is alleged 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. 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 expenses 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 parson 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

23

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 signedhis own thereto. The decision in that case
related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason whatever why the will
involved in the present litigation should not be probated. The due and legal execution of the will by the testatrix is clearly established by
the proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is resolved in
case No. 6284 of which we have already spoken. We there held that said later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in the usual form
probating the will involved in this litigation and to proceed with such probate in accordance with law.

24

G.R. No. L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The
case was originally appealed to the Court of Appeals where the following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. "A", was signed in
accordance with law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish
language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. 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 (3) instrumental witnesses
Blas Sebastian, Faustino Macaso and Rafael Ignacio, 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, which is the
last page of said last Will and Testament, also appears the signature of the three (3) 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. (Emphasis supplied)
The appeal squarely presents the following issue: Does 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?
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) which 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 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. . . . (Emphasis supplied).
Note that the old law as well as the new 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. Applying this provision this Court said in the case of Ex
Parte Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how,
or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's request, the notary
certifying thereto as provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618 above
referred to, but it is necessary that the testator's name be written by the person signing in his stead in the place where he

25

could have signed if he knew how or was able to do so, and this in the testator's presence and by his express direction; so that
a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated.
Where a testator does not know how, 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 Doe; or in this form: "By the testator, John Doe, Richard Doe." All this must be written by the
witness signing at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of
the testator and his own name in one forms given above. He did not do so, however, and this is failure to comply with the law
is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one
appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461,
we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is
unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import areas follows: (Ex
Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
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.
G.R. No. L-7647
DOMINGO CALUYA, petitioner-appellant,
vs.
LUCINA DOMINGO, respondent-appellee.
This is an appeal from a judgment of the Court of First Instance of the Province of Ilocos Norte denying the probate of a will.
The learned court below based its judgment upon three grounds. The first one was that, although the testator had signed by mark, it
nowhere appeared in the will who had written the signature or that it had been written at his request. The second, that the witness
Antonino Pandaraoan could not really have signed the attestation clause because, at the time it was executed, he was attending a
session of the municipal council of Piddig as a member thereof. Third: That as to the other witness, Segundino Asis, the will mentioned
and confirmed a sale of land to him by the testator, and he being thereby an interested party his testimony could not be believed.
We do not believe that any of the objections are well founded and the judgment refusing its probate must, therefore, be reversed.
Section 618 of the Code of Civil Procedure provides in part: 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. . . .
It is nowhere required that, where the testator is unable to write, the fact that his signature was written by some other person, at his
request and express direction, should appear in the body of the will itself. In the case of Barut vs. Cabacungan (21 Phil. Rep., 461, 463)
we held the following:
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 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 it 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 person 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 pen name also. As a matter of policy it may
be wise that he did 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

26

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 status expressly declares is valid.
The section above quoted also provides that "the attestation clause 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 the 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."
Not only does the attestation clause comply with the requirements of this section, but it appears clearly proved in evidence that the
name of the testator was signed by another person at his request and under his direction and in his presence and in the presence of
the witnesses to the will. Moreover, as appears from the last clause of the section, if the attestation clause is defective, or even absent,
the will is nevertheless valid provided it is satisfactorily proved that it was in fact signed and executed as provided by law.
As to the second objection, namely, that Antonino Pandaraoan could not have signed the will as a witness thereto, as stated in the
attestation clause, because he was attending a meeting of the municipal council of Piddig at the time the will is alleged to have been
executed, we believe this also to be without merit. It does not appear in the evidence of the opposition that the witness Pandaraoan was
attending a meeting of the municipal council of Piddig from something like 10 o'clock till 12.30 o'clock of the day on which the will was
executed ands that the will was executed sometime between 10 and 12 o'clock. To much weight, however, can not be given to the
testimony relative to the precise time of the execution of the will. The barrio of Piddig is only a short distance from the house in which
the will was executed and it would have taken but a short time to cover the distance. the witness Pandaraoan himself testified directly
and positively that, after having left the meeting of the municipal council, he went to the house of the testator by appointment and there
signed the will as stated in the attestation clause. The other witnesses to the will support this declaration. Not only this, but the notary
public who drew up the will and who translated it to the testator and who was present at the time of its execution, declared and testified
that the witnesses whose names appear upon the will were present at the time it was executed by the testator and that they signed the
same at his request and in his presence and in the presence of each other. All of the witnesses to the will unite in declaring that they
were there present at the time the will was executed and that they signed as witnesses in the presence of the testator and of each
other. The mere fact that there was a session of the municipal council of Piddig about the same time that the will was executed is not
necessarily conclusive against the fact that Antonino Pandaraoan was present and signed as a subscribing witness as he declares.
Mistakes in time are easily made among witnesses who measure time not so much by clocks or watches as by the sun. Antonino
Pandaraoan testified that the municipal council began its session about 10 o'clock; that in order to attend the execution of the will, as he
had agreed with the notary public he would do, he was obliged to leave the session before it terminated; that he so left the session,
mounted a horse and arrived at the house of the testator at about 12 o'clock, in time to take part in the execution of the ill as stated in
the attestation clause.
We do not believe that the clear and positive testimony of the witnesses to the will and of the notary public is overcome by the evidence
offered in opposition to the probate.

As to the third ground upon which the court based its decision; namely, that the will having mentioned and confirmed a sale of land to
Segundino Asis, one of the witnesses to the will, while not rendering the will entirely invalid, throws great doubt upon the legality of its
execution and especially the testimony of said witness relating thereto.
Section 622 provides:
If a person attests the execution of a will, to whom or to whose wife or husband, or parent, or child, a beneficial devise, legacy, or
interest, of or affecting real or personal estate, is given by such will, such devise, legacy, or interest shall, so far only as concerns such
person, or the wife or husband, or parent or child of such person, or anyone claiming under such person or such wife or husband, or
parent or child, be void, unless there are three other competent witnesses to such will, and such person so attesting shall be admitted
as a witness as if such devise, legacy, or interest had not been made or given. But a mere charge on the real or personal estate of the
testator, for the payment of debts, shall not prevent his creditors from being competent witnesses to his will.
As will readily be seen on reading this section, nothing in the will before us relative to the sale of land to Segundino Asis creates such
an interest therein as falls within the provisions thereof. Indeed, no interest of any kind was created by the will in favor of Segundino
Asis, nor did it convey or transfer of any interest to him. It simply mentioned a fact already consummated, a sale already made. Even if,
however, the will had conveyed an interest to Segundino Asis, it would not have been for that reason void. Only that clause of the will
conveying an interest to him would have been void; the remainder could have stood and would have stood as a valid testament.
We are confident from a thorough examination of the record that a fair preponderance of the evidence is in favor of the proponents, and
there being no legal impediment to the probate the court erred in refusing it.
The judgment appealed from is hereby reversed and the cause remanded to the court whence it came with instructions to legalize and
probate the will in accordance with the petition.

27