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Nenita de Vera SUROZA vs. Judge Reynaldo P. HONRADO and Evangeline YUIPCO
A.M. No. 2026-CFI, December 19, 1981
Mauro Suroza, a corporal in the 45th Infantry of the US Army (Philippine Scouts) married Marcelina
Salvador but they were childless. However, they reared a boy named Agapito who used the surname
Suroza and who considred them as parents as shown in his marriage contract with Nenita de Vera. When
Mauro died, Marcelina, as a veterans widow, became a pensioner of the Federal Government. Agapito
and Nenita begot a child named Lilia and afterwards, Agapito also became a soldier. However, he was
disabled and his wife was appointed as his guardian when he was declared an incompetent. In connection
to this, a woman named Arsenia de la Cruz (apparently a girlfriend of Agapito) wanted also to be his
guardian however the court confirmed Nenitas appointment as guardian of Agapito.
The spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who was delivered to
Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her
granddaughter. Marilyn used the surname Suroza and stayed with Marcelina but was not legally adopted
by Agapito.
Marcelina, being a veterans widow accumulated some cash in two banks. She executed a notarial will
which is in English and was thumbmarked by her for she was illiterate. In that will, Marcelina bequeathed
all her estate to Marilyn. After her death, Marina Paje (alleged to be a laundrywoman of Marcelina and
the executrix in her will) filed a petition for probate of Marcelinas alleged will. As there was no
opposition, Judge Honrado appointed Marina as administratix and subsequently, issued two orders
directing the two banks to allow Marina to withdraw from the savings of Marcelina and Marilyn Suroza
and requiring the custodian of the passbooks to deliver them to Marina. Upon motion of Marina, Judge
Honrado issued another order instructing the sheriff to eject the occupants of the testatrix house among
whom was Nenita and to place Marina in possession thereof.
Nenita was then alerted to the existence of the testamentary proceeding hence, she and other occupants
filed a motion to set aside the order ejecting them, alleging that the decedents son Agapito was the sole
heir of the deceased; that he has a daughter named Lilia; that Nenita was Agapitos guardian; and that
Marilyn was not Agapitos daughter nor the decedents granddaughter. Later, they questioned the probate
courts jurisdiction to issue the ejectment order. In spite of such fact, Judge Honrado issued on order
probating Marcelinas supposed will wherein Marilyn was the instituted heiress. Nenita filed in the testate
case an omnibus petition to set aside proceedings, admit opposition with counter petition for
administration and preliminary injunction reiterating that Marilyn was a stranger to Marcelina; that the
will was not duly executed and attested; and that the thumbmarks of the testatrix were procured by fraud
or trick.
Further, that the institution of Marilyn as heir is void because of the preterition of Agapito and that
Marina was not qualified to act as executrix. Not contented with her motions, Nenita filed an opposition
to the probate of the will and a counter-petition which was however, dismissed. Instead of appealing,
Nenita filed a case to annul the probate proceedings which was also dismissed. Hence, this complaint.
Whether or not a disciplinary action should be taken against respondent judge for having admitted a will,
which on its face is void.
Disciplinary action should be taken against respondent judge for his improper disposition of the testate
case which might have resulted in a miscarriage of justice because the decedents legal heirs and not the
instituted heiress in the void will should have inherited the decedents estate. Inefficiency implies
negligence, incompetence, ignorance and carelessness. A judge would be inexcusably negligent if he
failed in the performance of his duties that diligence, prudence and circumspection which the law requires
in the rendition of any public service.
In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.
Facts:
1. This case is an appeal from a CFI Cavite order denying the probate of the will of Gabina Raquel. The
document consist of 3 pages and it seems that after the attestation clause, there appears the siganture of
the testatrix 'Gabina Raquel', alongside is a smudged in violet ink claimed by the proponents as the
thumbmark allegedly affixed by the tetratrix. On the third page at the end of the attestation clause appears
signatures on the left margin of each page, and also on the upper part of each left margin appears the same
violet ink smudge accompanied by the written words 'Gabina Raquel' with 'by Lourdes Samonte'
underneath it.
2. The proponent's evidence is to the effect that the decedent allegedly instructed Atty. Agbunag to drat
her will and brought to her on January 1950. With all the witnesses with her and the lawyer, the decedent
affixed her thumbmark at the foot of the document and the left margin of each page. It was also alleged
that she attempted to sign using a sign pen but was only able to do so on the lower half of page 2 due to
the pain in her right shoulder. The lawyer, seeing Gabina unable to proceed instructed Lourdes Samonte
to write 'Gabina Raquel by Lourdes Samonte' next to each thumbmark, after which the witnesses signed
at the foot of the attestation clause and the left hand margin of each page.
3. The probate was opposed by Basilia Salud, the niece of the decedent.
4. The CFI of cavite denied the probate on the ground that the attestation clause did not state that the
testatrix and the witnesses signed each and every page nor did it express that Lourdes was specially
directed to sign after the testatrix.
Issue: Whether or not the thumbprint was sufficient compliance with the law despite the absence of a
description of such in the attestation clause
HELD: YES
The absence of the description on the attestation clause that another person wrote the testatrix' name at
her request is not a fatal defect, The legal requirement only ask that it be signed by the testator, a
requirement satisfied by a thumbprint or other mark affixed by him.
As to the issue on the clarity of the ridge impression, it is held to be dependent on the aleatory
circumstances. Where a testator employs an unfamiliar way of signing and that both the attestation clause
and the will are silent on the matter, such silence is a factor to be considered against the authenticity of the
testament. However, the failure to describe the signature itself alone is not sufficient to refuse probate
when evidence fully satisfied that the will was executed and witnessed in accordance with law.
Garcia v. Lacuesta
Antero Mercado left a will dated January 3, 1943. The will appears to have been signed by Atty.
Florentino Javier as he wrote the name of Antero Mercado and his name for the testatior on the will.
HOWEVER, immediately after Antero Mercados will, Mercado himself placed an X mark.
The attestation clause was signed by three instrumental witnesses. Said attestation clause states that all
pages of the will 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. The attestation clause however
did not indicate that Javier wrote Antero Mercados name.
HELD: No. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testators name under his express direction, as required by Section 618 of
the Code of Civil Procedure.
But is there really a need for such to be included in the attestation clause considering that even though
Javier signed for Antero, Antero himself placed his signature by virtue of the X mark, and by that,
Javiers signature is merely a surplusage? That the placing of the X mark is the same as placing
Anteros thumb mark.
No. Its not the same as placing the testators thumb mark. It would have been different had it been proven
that the X mark was Anteros usual signature or was even one of the ways by which he signs his name.
If this were so, failure to state the writing by somebody else would have been immaterial, since he would
be considered to have signed the will himself.
Noble v. Abaja
450 SCRA 265
FACTS:
The case is about the probate of the will of Alipio Abada (Not respondent Abaja). Petitioner Belinda
Noble is the administratrix of the estate of Abada. Respondent Alipio Abaja filed a petition for the probate
of Abadas will. Petitioner Noble moved for dismissal of the petition for probate.
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.
ISSUE:
Should it be expressly stated in the will that it (the will) was in a language known by the testator?
HELD:
No. There is no statutory requirement to state in the will itself that the testator knewthe language or
dialect used in the will.[25] This is a matter that a party may establish by proof aliunde. In this case,
Alipio testified that Abada used to gather Spanish-speaking people in their place. In these gatherings,
Abada and his companions would talk in the Spanish language. This sufficiently proves that Abada speaks
the Spanish language.
*No Azuela v. CA
Balonan v. Abellana
Anacleta Abellana left a will. In said will, she let a certain Juan Bello sign the will for her. The will
consists of two pages. The first page is signed by Juan Abello and under his name appears typewritten
Por la testadora Anacleta Abellana. On the second page, appears the signature of Juan Bello under
whose name appears the phrase, Por la Testadora Anacleta Abellana this time, the phrase is
handwritten.
ISSUE: Whether or not the signature of Bello appearing above the typewritten phrase Por la testadora
Anacleta Abellana comply with the requirements of the law prescribing the manner in which a will shall
be executed.
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 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.
Note that the phrase Por la testadora Anacleta Abellana was typewritten and above it was the signature
of Abello so in effect, when Abello only signed his name without writing that he is doing so for
Anacleta, he actually omitted the name of the testatrix. This is a substantial violation of the law and would
render the will invalid.
Nera v. Rimando
When a certain will was being signed, it was alleged that the testator and some subscribing witnesses
were in the inner room while the other subscribing witnesses were in the outer room. What separates the
inner room from the outer room was a curtain. The trial court ignored this fact in its determination of the
case as it ruled that the determination of this specific fact will not affect the outcome of the case.
ISSUE: What is the true test of the testators or the witness presence in the signing of a will?
HELD: The Supreme Court emphasized that the true test of presence of the testator and the witnesses in
the execution of a will is not whether they actually saw each other sign, but whether they might have seen
each other sign, had they chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature.
The position of the parties with relation to each other at the moment of the subscription of each signature,
must be such that they may see each other sign if they choose to do so.
The Supreme Court, in this case, determined that all the parties were in the same small room when each
other signed. Hence, they were in each others presence (though the facts of the case didnt elaborate the
SC just ruled so). The SC ruled that if some of the witnesses were really in the outer room (a fact which
was not established according to the SC) separated by a curtain, then the will is invalid, the attaching of
those signatures under circumstances not being done in the presence of the witness in the outer room.
Taboada v. Rosal
Dorotea Perez left a will. The will has two pages. On the first page, which contains the entire
testamentary dispositions, were the signatures of the three instrumental witnesses and that of Dorotea
Perez. The signatures of the three instrumental witnesses were on the left margin while Perez signature
was on the bottom. On the second page, which contains the attestation clause and the acknowledgement,
were the signatures of the three attesting witnesses and that of Dorotea Perez. The attestation clause failed
to state the number of pages used in the will. Taboada petitioned for the admission to probate of the said
will. The judge who handled the petition was Judge Ramon Pamatian. He denied the petition. Taboada
filed a motion for reconsideration but Pamatian was not able to act on it because he was transferred to
another jurisdiction. The case was inherited by Judge Rosal who also denied the MFR on the grounds that
a) that the testator and the instrumental witnesses did not all sign on the left margin of the page as
prescribed by law; that the testator and the witnesses should have placed their signature in the same place
b) that the attestation clause failed to state the number of pages used in writing the will this, according
to Judge Rosal violated the requirement that the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed.
The failure to include in the attestation clause of the number of pages used in writing the will would have
been a fatal defect. But then again, the matter should be approached liberally. There were only two pages
in the will left by Perez. The first page contains the entirety of the testamentary dispositions and signed by
the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The
other page which is marked as Pagina dos comprises the attestation clause and the acknowledgment.
Further, the acknowledgment itself states that This Last Will and Testament consists of two pages
including this page.
Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his appointment
as executor thereof. It appears from the evidence that the testatrix died on September 12, 1958. She
executed a will in Tagalog, and through the help of her lawyer, it was prepared in duplicates, an original
and a carbon copy.
2. On the day that it was subscribed and attested, the lawyer only brought the original copy of the will
while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses failed to sign one of the
pages in the original copy but admitted he may have lifted 2 pages simultaneously instead when he signed
the will. Nevertheless, he affirmed that the will was signed by the testator and other witnesses in his
presence.
Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to a page is
Facts:
1. The case is an appeal interposed by the oppositors from a decision of the CFI of Samar which admitted
to probate a will allegedly executed by Vicente Cagro who died in Pambujan, Samar on Feb. 14, 1949.
2. The appellants insisted that the will is defective because the attestation was not signed by the witnesses
at the bottom although the page containing the same was signed by the witnesses on the left hand margin.
3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin conform
substantially to law and may be deemed as their signatures to the attestation clause.
HELD: Will is not valid. The attestation clause is a memorandum of the facts attending the execution of
the will. It is required by law to be made by the attesting witnesses and it must necessarily bear their
signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses since the omission of their
signatures at the bottom negatives their participation.
Moreover, the signatures affixed on the let hand margin is not substantial conformance to the law. The
said signatures were merely in conformance with the requirement that the will must be signed on the lefthand margin of all its pages. If the attestation clause is unsigned by the 3 witnesses at the bottom, it would
be easier to add clauses to a will on a subsequent occasion and in the absence of the testator and any or all
of the witnesses.
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:
Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However,
the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit,
misrepresentation, and undue influence. He further alleged that the instrument was executed without the
testator having been informed of its contents and finally, that it was not executed in accordance with law.
2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged.
Despite the objection, the lower court admitted the will to probate on the ground that there is substantial
compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of
them.
Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC
HELD: NO.
The will is not valid. The notary public cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot
serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to assent, admit, and 'before' means in front
of or preceding in space or ahead of. The notary cannot split his personality into two so that one will
appear before the other to acknowledge his participation int he making of the will. To permit such
situation would be absurd.
Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a
function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in
sustaining the validity of the will as it directly involves himself and the validity of his own act. he would
be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize
fraud.
Gabucan v. Manta
FACTS:
This case is about the dismissal of a petition for the probate of the notarial will of the late Rogaciano
Gabucan on the ground that it does not bear a thirty-centavo documentary stamp. The probate court
refused to reconsider the dismissal in spite of petitioners manifestation that he had already attached the
documentary stamp to the original of the will.
ISSUE:
W/N the probate correct was correct in dismissing the petition on the ground of failure to affix the
documentary stamp to the will
HELD:
The Court held that the lower court manifestly erred in declaring that, because no documentary stamp was
affixed to the will, there was no will and testament to probate and, consequently, the alleged action
must of necessity be dismissed.
What the probate court should have done was to require the petitioner or proponent to affix the requisite
thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion
of that document. The documentary stamp may be affixed at the time the taxable document is presented in
evidence.
Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased Apolinaria Ledesma
in July 1953. This testament was deemed executed on May 1950 and May 1952. The contestant was the
sister and nearest surviving relative of the deceased. She appealed from this decision alleging that the
will were not executed in accordance with law.
2. The testament was executed at the house of the testatrix. One the other hand, the codicil was executed
after the enactment of the New Civil Code (NCC), and therefore had to be acknowledged before a notary
public. Now, the contestant, who happens to be one of the instrumental witnesses asserted that after the
codicil was signed and attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on
the same occasion. Gimotea, however, said that he did not do so, and that the act of signing and sealing
was done afterwards.
2. One of the allegations was that the certificate of acknowledgement to the codicil was signed
somewhere else or in the office of the notary. The ix and the witnesses at the hospital, was signed and
sealed by the notary only when he brought it in his office.
Issue: Whether or not the signing and sealing of the will or codicil in the absence of the testator and
witnesses affects the validity of the will
RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the
testator, the witnesses and the notary be accomplished in one single act. All that is required is that every
will must be acknowledged before a notary public by the testator and witnesses. The subsequent signing
and sealing is not part of the acknowledgement itself nor of the testamentary act. Their separate execution
out of the presence of the testator and the witnesses cannot be a violation of the rule that testaments
should be completed without interruption.
Facts:
Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero andrespondent Resurreccion A.
Bihis, died. Guerrero filed for probate in the RTCQC. Respondent Bihis opposed her elder sisters petition
on the following grounds: the will was not executed and attested as required by law; itsattestation clause
and acknowledgment did not comply with the requirementsof the law; the signature of the testatrix was
procured by fraud and petitioner and her children procured the will through undue and improper pressure
andinfluence. The trial court denied the probate of the will ruling that Article 806 of the Civil Code was
not complied with because the will was acknowledged bythe testatrix and the witnesses at the testatrixs
residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a
commissionednotary public for and in Caloocan City.
ISSUE: Did the will acknowledged by the testatrix and the instrumental witnessesbefore a notary
public acting outside the place of his commission satisfy therequirement under Article 806 of the Civil
Code?
HELD:
No. One of the formalities required by law in connection with the execution of a notarial will is that it
must be acknowledged before a notary public by thetestator and the witnesses. This formal requirement is
one of theindispensable requisites for the validity of a will. In other words, a notarial willthat is not
acknowledged before a notary public by the testator and theinstrumental witnesses is void and cannot be
accepted for probate.The Notarial law provides: SECTION 240.Territorial jurisdiction.
The jurisdiction of a notary public in a province shall be co-extensive with theprovince. The jurisdiction
of a notary public in the City of Manila shall be co-extensive with said city. No notary shall possess
authority to do any notarialact beyond the limits of his jurisdiction.Sine Atty. Directo was not a
commissioned notary public for and in QuezonCity, he lacked the authority to take the acknowledgment
of the testratix andthe instrumental witnesses. In the same vain, the testratix and theinstrumental
witnesses could not have validly acknowledged the will beforehim. Thus, Felisa Tamio de Buenaventuras
last will and testament was, in effect, not acknowledged as required by law.
The Court of First Instance of Manila admitted to probate the alleged will and testament of the deceased
Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to this Court, raising only question of law.
Her counsel assigns the two following alleged errors:
Primer Error. El Juzgado inferior erro al dejar de declarar que el alegado testamento de Carlos Gil no
ha sido otogar de acuerdo con la ley.
Segundo Error. Erro finalmente a legalizar el referido testamento. (HIJO DE PUTA!!! DO I SPEAK
SPANISH?! NO ME HABLE ESPAOL ESE!!!)
It will be noted that the attestation clause above quoted does not state that the alleged testor signed the
will. It declares only that it was signed by the witnesses. This is a fatal defect, for the precise purpose of
the attestation clause is to certify that the testator signed the will, this being the most essential element of
the clause. Without it there is no attestation at all. It is said that the court may correct a mere clerical error.
This is too much of a clerical error for it affects the very essence of the clause. Alleged errors may be
overlooked or correct only in matters of form which do not affect the substance of the statement.
It is claimed that the correction may be made by inference. If we cure a deficiency by means of
inferences, when are we going to stop making inferences to supply fatal deficiencies in wills? Where are
we to draw the line? Following that procedure we would be making interpolations by inferences,
implication, and even by internal circumtantial evidence. This would be done in the face of the clear,
uniquivocal, language of the statute as to how the attestation clause should be made. It is to be supposed
that the drafter of the alleged will read the clear words of the statute when he prepared it. For the court to
supply alleged deficiencies would be against the evident policy of the law. Section 618 of Act No. 190,
before it was amended, contained the following provision:
. . . But the absence of such form of attestation shall not render the will invalid if it proven that the will
was in fact signed and attested as in this section provided.
However, Act No. 2645 of the Philippine Legislature, passed on July 1, 1916, besides increasing the
contents of the attestation clause, entirely suppressed the above-quoted provision. This would show that
the purpose of the amending act was to surround the execution of a will with greater guarantees and
solemnities. Could we, in view of this, hold that the court can cure alleged deficiencies by inferences,
implications, and internal circumstantial evidence? Even in ordinary cases the law requires certain
requisities for the conclusiveness of circumstantial evidence.
It is said that the rules of statutory construction are applicable to documents and wills. This is true, but
said rules apply to the body of the will, containing the testamentary provisions, but not to the attestation
clause, which must be so clear that it should not require any construction.
In the case of Gumban vs. Gorecho (50 Phil., 30, 31), the court had the following to say:
4. ID.; ID.; ID.; ID. An attestation clause which does not recite that the witnesses signed the will and
each and every page thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. (Sano vs. Quintana, supra.)
The Supreme Court fully affirmed the decision, laying down the following doctrine:
1. WILLS; ATTESTATION CLAUSE; EVIDENCE TO SUPPLY DEFECTS OF. The attestation clause
must be made in strict conformity with the requirements of section 618 of Act No. 190, as amended.
Where said clause fails to show on its face a full compliance with those requirements, the defect
constitutes sufficient ground for the disallowance of the will. (Sano vs. Quintana, 48 Phil., 506; Gumban
vs. Gorecho, 50 Phil., 30). Evidence aliunde should not be admitted to establish facts not appearing on the
attestation clause, and where said evidence has been admitted it should not be given the effect intended.
(Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 409.).
2. ID.; ID.; INTERPRETATION OF SECTION 618 OF ACT NO. 190, AS AMENDED. Section 618
of Act No. 190, as amended, should be given a strict interpretation in order to give effect to the intention
of the Legislature. Statutes prescribing formalities to be observed in the execution of wills are very
strictly construed. Courts cannot supply the defensive execution of will. (40 Cyc., p. 1079; Uy Coque vs.
Navas L. Sioca, supra.)
Tedoro CANEDA, et al.petitioners vs. Hon. COURT OF APPEALS and William CABRERA, as
Special Administrator of the Estate of Mateo Caballero, respondents.
On December 5, 1978, Mateo Caballero, a widower without any children, already in the twilight years of
his life executed a last will and testament before three attesting witnesses and he was duly assisted by his
lawyer and a notary public. It was declared therein that, among other things that the testator was leaving
by way of legacies and devises his real and personal properties to specific persons, all of whom do not
appear to be related to Mateo. Not long after, he himself filed a petition before the CFI seeking the
probate of his last will and testament but the scheduled hearings were postponed, until the testator passed
away before his petition could finally be heard by the probate court. Benoni Cabrera, one of the legatees
named in the will, sought his appointment as special administrator of the testators estate but due to his
death, he was succeeded by William Cabrera, who was appointed by RTC which is already the probate
court.
PETITIONERS: The petitioners assail to the allowance of the testators will on the ground that it was not
executed in accordance with all the requisites of law since the testator was already in a poor state of
health such that he could not have possibly executed the same. Petitioners likewise contend that the will is
null and void because its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that they
also signed the will and all the pages thereof in the presence of the testator and of one another.
RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and disposing mind
and in good health when he executed his will. Further, they also contend that the witnesses attested and
signed the will in the presence of the testator and of each other.
Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective such that
whether or not it affects the validity of the will.
Whether or not the attestation clause complies with the substantial compliance pursuant to Article 809 of
the Civil Code.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution of the same. It is a separate
memorandum or record of the facts surrounding the conduct of execution and once signed by the
witnesses; it gives affirmation to the fact that compliance with the essential formalities required by law
has been observed. Under the 3rd paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, should state:
- The number of pages used upon which the will is written;
- That the testator signed, or expressly cause another to sign, the will and every page thereof in the
presence of the attesting witnesses; and
- That the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that
the said witnesses also signed the will and every page thereof in the presence of the testator and of one
another.
It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the
presence of the testator and of one another. Attestation and subscription differ in meaning. Attestation
is the act of sense, while subscription is the act of the hand. The attestation clause herein assailed is that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not expressly
state therein the circumstance that said witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other. What is then clearly lacking is the statement that the witnesses
signed the will and every page thereof in the presence of the testator and of one another.
The absence of the statement required by law is a fatal defect or imperfection which must necessarily
result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct
in pointing out that the defect in the attestation clause obviously cannot be characterized as merely
involving the form of the will or the language used therein which would warrant the application of the
substantial compliance rule, as contemplated in Article 809 of the Civil Code:
In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence, defects and
imperfection in the form of attestation or in the language used therein shall not render the will invalid if it
is not proved that the will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
The defects and imperfection must only be with respect to the form of the attestation or the language
employed therein. Such defects or imperfection would not render a will invalid should it be proved that
the will was really executed and attested in compliance with Article 805. These considerations do not
apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other. In such a situation, the defect is not only
in the form or language of the attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible way by which it can be read into the
questioned attestation clause statement, or an implication thereof, that the attesting witness did actually
bear witness to the signing by the testator of the will and all of its pages and that said instrumental
witnesses also signed the will and every page thereof in the presence of the testator and of one another.
there is reason to make an exception to that rule, since the finding of the respondent court is contrary to that of the
trial court.
In the case at bench, the autoptic preference (From the point of view of the litigant party furnishing
this source of belief, it may be termed Autoptic Proference) contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white
or more accurately, in black and blue that more than one pen was used by the signatories thereto. Thus, it was
not erroneous nor baseless for respondent court to disbelieve petitioners claim that both testamentary documents
in question were subscribed to in accordance with the provisions of Art. 805 of the Civil Code.
Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas
A. Tolete. It is true that his testimony contains a narration of how the two testamentary documents were
subscribed and attested to, starting from decedents thumbmarking thereof, to the alleged signing of the
instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in Judge Toletes testimony is
there any kind of explanation for the different-colored signatures on the testaments.
a.
Special requirements
Art. 807.
If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in some
practicable manner, the contents thereof. (n)
Art. 808.
If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged. (n)
The clause above quoted is the attestation clause reffered to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it appears to be an
attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, as to
affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures
of the three instrumental witnesses.
"Instrumental witness, as define by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, Vol. 4, p.
1115, is one who takes part in the execution of an instrument or writing" (In re will of Tan Diuco, 45 Phil., 807, 809).
An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper
execution of the will. The fact that the three instrumental witnesses have signed the will immediately
under the signature of the testator, shows that they have in fact attested not only to the genuineness
of his signature but also to the due execution of the will as embodied in the attestation clause.
As was said in one case, "the object of the solemnities surrounding the execution of the wills is to
close the door against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should be intrepreted in such a way
as to attain this premordial ends. But on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's will, must be
disregarded."
b.
Witnesses to wills
1.
Art. 820.
Any person of sound mind and of the age of eighteen years or more , and not blind, deaf
or dumb, and able to read and write, may be a witness to the execution of a will mentioned in
Article 805 of this Code. (n)
Art. 821. The following are disqualified from being witnesses to a will:
1.
2.
Holographic wills
1.
In general
Art. 804.
2.
Every will must be in writing and executed in a language or dialect known to the testator. (n)
Specific requirements
Art. 810.
A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made
in or out of the Philippines, and need not be witnessed. (678, 688a)
Art. 812.
In holographic wills, the dispositions of the testator written below his signature must be
dated and signed by him in order to make them valid as testamentary dispositions. (n)
Art. 813.
When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions. (n)
Art. 814.
Ajero v. CA
236 SCRA 488
FACTS:
Issue: Whether the Magsaysay sister, allegedly stockholders of SUBIC, are interested parties in a case
where corporate properties are in dispute.
Held: Viewed in the light of Section 2, Rule 12 of the Revised Rules of Court, the Magsaysay sisters have
no legal interest in the subject matter in litigation so as to entitle them to intervene in the proceedings. To
be permitted to intervene in a pending action, the party must have a legal interest in the matter in
litigation, or in the success of either of the parties or an interest against both, or he must be so situated as
to be adversely affected by a distribution or other disposition of the property in the custody of the court or
an officer thereof . Here, the interest, if it exists at all, of the Magsaysay sisters is indirect, contingent,
remote, conjectural, consequential and collateral. At the very least, their interest is purely inchoate, or in
sheer expectancy of a right in the management of the corporation and to share in the profits thereof and in
the properties and assets thereof on dissolution, after payment of the corporate debts and obligations.
While a share of stock represents a proportionate or aliquot interest in the property of the corporation, it
does not vest the owner thereof with any legal right or title to any of the property, his interest in the
corporate property being equitable or beneficial in nature. Shareholders are in no legal sense the owners
of corporate property, which is owned by the corporation as a distinct legal person.