NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Ri-
zal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of
Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having ad-
mitted to probate a will, which on its face is void because it is written in Eng-
lish, a language not known to the illiterate testatrix, and which is probably
a forged will because she and the attesting witnesses did not appear before
the notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled
strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec.
Proc. No. 7816). They were childless. They reared a boy named Agapito who
used the surname Suroza and who considered them as his parents as shown
in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R.
No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5
years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner

of the Federal Government. That explains why on her death she had accu-
mulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical tech-
nologist and went abroad. Agapito also became a soldier. He was disabled
and his wife Nenita was appointed as his guardian in 1953 when he was
declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la

Cruz wanted also to be his guardian in another proceeding. Arsenia tried to
prove that Nenita was living separately from Agapito and that she (Nenita)
admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record
of testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding

and confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of
CA case). Agapito has been staying in a veteran's hospital in San Francisco
or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermog-
ena Talan begot a child named Marilyn Sy, who, when a few days old, was
entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito) and who
was later delivered to Marcelina Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo
of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed
with Marcelina but was not legally adopted by Agapito. She married Oscar
Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a
neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973,

when she was 73 years old. That will which is in English was thumbmarked
by her. She was illiterate. Her letters in English to the Veterans Administra-
tion were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Mar-
celina bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon

City. At the time of her death, she was a resident of 7374 San Maximo Street,
Olimpia, Makati, Rizal. She owned a 150-square meter lot and house in that
place. She acquired the lot in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Mar-

celina (P. 97, CA Rollo) and the executrix in her will (the alternate executrix
was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filed with the
Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate
of Marcelina's alleged will. The case was assigned to Judge Reynaldo P.
Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk

of court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are
not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as ad-
ministratrix. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of America to al-
low Marina to withdraw the sum of P10,000 from the savings accounts of
Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrix's
house, among whom was Nenita V. Suroza, and to place Marina in posses-
sion thereof.

That order alerted Nenita to the existence of the testamentary proceeding for
the settlement of Marcelina's estate. She and the other occupants of the de-
cedent's house filed on April 18 in the said proceeding a motion to set aside
the order of April 11 ejecting them. They alleged that the decedent's son
Agapito was the sole heir of the deceased, that he has a daughter named
Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's
daughter nor the decedent's granddaughter (pp. 52-68, Record of testate
case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.

In spite of the fact that Judge Honrado was already apprised that persons,
other than Marilyn, were claiming Marcelina's estate, he issued on April 23
an order probating her supposed will wherein Marilyn was the instituted heir-
ess (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition for administration and
preliminary injunction". Nenita in that motion reiterated her allegation that
Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by Ma-
rina and Marilyn and that the thumbmarks of the testatrix were procured by
fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because
of the preterition of Agapito and that Marina was not qualified to act as exec-
utrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the house-
maid of Marcelina, who swore that the alleged will was falsified (p. 109,
Record).

Not content with her motion to set aside the ejectment order (filed on April
18) and her omnibus motion to set aside the proceedings (filed on April 24),
Nenita filed the next day, April 25, an opposition to the probate of the will and
a counter-petition for letters of administration. In that opposition, Nenita as-
sailed the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record).
Nenita was not aware of the decree of probate dated April 23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio,

Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-
125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admit-
ted that Marilyn was not Marcelina's granddaughter but was the daughter of
Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's sonbut
merely an anak-anakan who was not legally adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-pe-
tition for the issuance of letters of administration because of the non-appear-
ance of her counsel at the hearing. She moved for the reconsideration of that
order.

In a motion dated December 5, 1975, for the consolidation of all pending

incidents, Nenita V. Suroza reiterated her contention that the alleged will is
void because Marcelina did not appear before the notary and because it is
written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents
"raised" by Nenita (p. 284, Record).

Instead of appealing from that order and the order probating the wig, Nenita
"filed a case to annul" the probate proceedings (p. 332, Record). That case,
Civil Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was
also assigned to Judge Honrado. He dismissed it in his order of February 16,
1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had
been paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filed
in this Court, Nenita charged Judge Honrado with having probated the fraud-
ulent will of Marcelina. The complainant reiterated her contention that the
testatrix was illiterate as shown by the fact that she affixed her thumbmark
to the will and that she did not know English, the language in which the win
was written. (In the decree of probate Judge Honrado did not make any find-
ing that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory
and legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and in-
formed him that the testatrix did not know the executrix Marina Paje, that the
beneficiary's real name is Marilyn Sy and that she was not the next of kin of
the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Ma-
rina and her cohorts to withdraw from various banks the deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not
giving her access to the record of the probate case by alleging that it was
useless for Nenita to oppose the probate since Judge Honrado would not
change his decision. Nenita also said that Evangeline insinuated that if she
(Nenita) had ten thousand pesos, the case might be decided in her favor.
Evangeline allegedly advised Nenita to desist from claiming the properties of
the testatrix because she (Nenita) had no rights thereto and, should she per-
sist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allega-
tions of the complaint. He merely pointed to the fact that Nenita did not ap-
peal from the decree of probate and that in a motion dated July 6, 1976 she
asked for a thirty day period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita
and that the latter did not mention Evangeline in her letter dated September
11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) pre-

vented Nenita from having access to the record of the testamentary proceed-
ing. Evangeline was not the custodian of the record. Evangeline " strongly,
vehemently and flatly denied" Nenita's charge that she (Evangeline) said that
the sum of ten thousand pesos was needed in order that Nenita could get a
favorable decision. Evangeline also denied that she has any knowledge of
Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this
Court in the Court Administrator's memorandum of September 25, 1980. The
case was referred to Justice Juan A. Sison of the Court of Appeals for inves-
tigation, report and recommendation. He submitted a report dated October
7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that the
will, the decree of probate and all the proceedings in the probate case be
declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who nota-
rized the will. He swore that the testatrix and the three attesting witnesses
did not appear before him and that he notarized the will "just to accommodate
a brother lawyer on the condition" that said lawyer would bring to the notary
the testatrix and the witnesses but the lawyer never complied with his com-
mitment.

The Court of Appeals dismissed the petition because Nenita's remedy was
an appeal and her failure to do so did not entitle her to resort to the special
civil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May
24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a mo-
tion to dismiss the administrative case for having allegedly become moot and
academic.

We hold that disciplinary action should be taken against respondent judge

for his improper disposition of the testate case which might have resulted in
a miscarriage of justice because the decedent's legal heirs and not the insti-
tuted heiress in the void win should have inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment

or interlocutory order or rendering a manifestly unjust judgment or interlocu-
tory order by reason of inexcusable negligence or ignorance (Arts. 204 to
206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first in-
stance for serious misconduct or inefficiency ( Sec. 67, Judiciary Law). Mis-
conduct implies malice or a wrongful intent, not a mere error of judgment.
"For serious misconduct to exist, there must be reliable evidence showing
that the judicial acts complained of were corrupt or inspired by an intention
to violate the law, or were in persistent disregard of well-known legal rules"
(In relmpeachment of Horrilleno, 43 Phil. 212, 214-215).

Inefficiency implies negligence, incompetence, ignorance and carelessness.

A judge would be inexcusably negligent if he failed to observe in the perfor-
mance of his duties that diligence, prudence and circumspection which the
law requires in the rendition of any public service (In re Climaco, Adm. Case
No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumbmarked by an obviously illiterate testatrix,
could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a lan-
guage "understood and known" to the testatrix. But in its concluding para-
graph, it was stated that the will was read to the testatrix "and translated into
Filipino language". (p. 16, Record of testate case). That could only mean that
the will was written in a language not known to the illiterate testatrix and,
therefore, it is void because of the mandatory provision of article 804 of the
Civil Code that every will must be executed in a language or dialect known
to the testator. Thus, a will written in English, which was not known to the
Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and no-
tarial acknowledgment where Marcelina Salvador Suroza is repeatedly re-
ferred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not
only the anomaly as to the language of the will but also that there was some-
thing wrong in instituting the supposed granddaughter as sole heiress and
giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of

court, respondent judge could have noticed that the notary was not pre-
sented as a witness.

In spite of the absence of an opposition, respondent judge should have per-

sonally conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to

be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S.

Suroza, a fine equivalent to his salary for one month is imposed on respond-
ent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academic be-
cause she is no longer employed in the judiciary. Since September 1, 1980
she has been assistant city fiscal of Surigao City. She is beyond this Court's
disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI Novem-
ber 21, 1980, 101 SCRA 225).

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will
of Antero Mercado dated January 3, 1943. The will is written in the Ilocano
dialect and contains the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testa-
ment 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 wit-
nesses, 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 judge-
ment 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 tes-
tator 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 surplus-
age. Petitioner's theory is that the cross is as much a signature as a thumb-
mark, 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 sig-
nature of Antero Mercado or even one of the ways by which he signed his
name. After mature reflection, we are not prepared to liken the mere sign of
the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a

sufficient recital in the attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the latter in the presence
of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the peti-
tioner. So ordered.

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of

Hon. Primitivo L. Gonzales, as Judge of the Court of First Instance of Cavite,
in connection with Special Proceedings No. 5213 of said court, entitled "Tes-
tate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a
petition for the probate of a document purporting to be the last will and tes-
tament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the
age of 92 years. The heir to the entire estate of the deceased except the
properties bequeathed to her other niece and nephews, namely, Victorina
Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias
is, pursuant to said instrument, Aurea Matias, likewise, appointed therein
as executrix thereof, without bond. Basilia Salud, a first cousin of the de-
ceased, opposed the probate of her alleged will, and, after appropriate pro-
ceedings, the court, presided over by respondent Judge, issued an order,
dated February 8, 1956, sustaining said opposition and denying the petition
for probate. Subsequently, Aurea Matias brought the matter on appeal to this
Court (G.R. No. L-10751), where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal
of Horacio Rodriguez, as special administrator of the estate of the deceased,
and the appointment, in his stead of Ramon Plata. The motion was set for
hearing on February 23, 1956, on which date the court postponed the hear-
ing to February 27, 1956. Although notified of this order, Rodriguez did not
appear on the date last mentioned. Instead, he filed an urgent motion praying
for additional time within which to answer the charges preferred against him
by Basilia Salud and for another postponement of said hearing. This motion
was not granted, and Basilia Salud introduced evidence in support of said
charges, whereupon respondent Judge by an order, dated February 27,
1956, found Rodriguez guilty of abuse of authority and gross negligence,
and, accordingly, relieved him as special administrator of the estate of the
deceased and appointed Basilia Salud as special administratrix thereof, to
"be assisted and advised by her niece, Miss Victorina Salud," who "shall al-
ways act as aide, interpreter and adviser of Basilia Salud." Said order, like-
wise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . .
who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956,
be set aside and that she be appointed special co-administratrix, jointly with
Horacio Rodriguez, upon the ground that Basilia Salud is over eighty (80)
years of age, totally blind and physically incapacitated to perform the duties
of said office, and that said movant is the universal heiress of the deceased
and the person appointed by the latter as executrix of her alleged will. This
motion was denied in an order dated March 10, 1956, which maintained "the
appointment of the three above named persons" Basilia Salud, Ramon
Plata and Victorina Salud "for the management of the estate of the late
Gabina Raquel pending final decision on the probate of the alleged will of
said decedent." However, on March 17, 1956, Basilia Salud tendered her
resignation as special administratrix by reason of physical disability, due to
old age, and recommended the appointment, in her place, of Victorina Salud.
Before any action could be taken thereon, or on March 21, 1956, Aurea Ma-
tias sought a reconsideration of said order of March 10, 1956. Moreover, on
March 24, 1956, she expressed her conformity to said resignation, but ob-
jected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on ac-
count of her antagonism to said Aurea Matias she (Victorina Salud) having
been the principal and most interested witness for the opposition to the pro-
bate of the alleged will of the deceased and proposed that the administra-
tion of her estate be entrusted to the Philippine National Bank, the Monte de
Piedad, the Bank of the Philippine Islands, or any other similar institution
authorized by law therefor, should the court be reluctant to appoint the mo-
vant as special administratrix of said estate. This motion for reconsideration
was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Vic-
torina Salud requested authority to collect the rents due, or which may be
due, to the estate of the deceased and to collect all the produce of her lands,
which was granted on June 23, 1956. On June 27, 1956, said respondents
filed another motion praying for permission to sell the palay of the deceased
then deposited in different rice mills in the province of Cavite, which respond-
ent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner
instituted the present action against Judge Gonzales, and Victorina Salud
and Ramon Plata, for the purpose of annulling the above mentioned orders
of respondent Judge, upon the ground that the same had been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction.

In support of this pretense, it is argued that petitioner should have preference

in the choice of special administratrix of the estate of the decedent, she (pe-
titioner) being the universal heiress to said estate and, the executrix ap-
pointed in the alleged will of the deceased, that until its final disallowance
which has not, as yet, taken place she has a special interest in said estate,
which must be protected by giving representation thereto in the management
of said estate; that, apart from denying her any such representation, the man-
agement was given to persons partial to her main opponent, namely, Basilia
Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very
close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was
made special administratrix despite her obvious unfitness for said office, she
being over eighty (80) years of age and blind; that said disability is borne out
by the fact that on March 17, 1956, Basilia Salud resigned as special admin-
istratrix upon such ground; that the Rules of Court do not permit the appoint-
ment of more than one special administrator; that Horacio Rodriguez was
removed without giving petitioner a chance to be heard in connection there-
with; and that Ramon Plata and Victorina Salud were authorized to collect
the rents due to the deceased and the produce of her lands, as well to sell
her palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted
with the scope of his jurisdiction and without any abuse of discretion; that
petitioner can not validly claim any special interest in the estate of the de-
ceased, because the probate of the alleged will and testament of the latter
upon which petitioner relies has been denied; that Horacio Rodriguez
was duly notified of the proceedings for his removal; and that Victorina Salud
and Ramon Plata have not done anything that would warrant their removal.

Upon a review of the record, we find ourselves unable to sanction fully the
acts of respondent Judge, for the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for his
removal, dated February 17, 1956, the record shows that petitioner herein
received copy of said motion of February 24, 1956, or the date after that set
for the hearing thereof. Again, notice of the order of respondent Judge, dated
February 23, 1956, postponing said hearing to February 27, 1956, was not
served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal
of Horacio Rodriguez, and the appointment of Ramon Plata, as special ad-
ministrator of said estate. Petitioner had, therefore, no notice that her main
opponent, Basilia Salud, and the latter's principal witness, Victorina Salud,
would be considered for the management of said. As a consequence, said
petitioner had no opportunity to object to the appointment of Basilia Salud as
special administratrix, and of Victorina Salud, as her assistant and adviser,
and the order of February 27, 1956, to this effect, denied due process to said
petitioner.

3. Said order was issued with evident knowledge of the physical disability of
Basilia Salud. Otherwise respondent Judge would not have directed that she
"be assisted and advised by her niece Victorina Salud," and that the latter
"shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administra-

tors Basilia Salud, Victorina Salud and Ramon Plata. Indeed, in the order
of March 10, 1956, respondent Judge maintained "the appointment of the
three (3) above-named persons for the management of the estate of the late
Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue
arose between Aurea Matias and Basilia Salud regarding the person to be
appointed special administrator of the estate of the deceased. The former
proposed Horacio Rodriguez, whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11, 1952, the Court, then presided
over by Hon. Jose Bernabe, Judge, decided the matter in favor of Horacio
Rodriguez and against Victorina Salud, upon the ground that, unlike the lat-
ter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides
In the City of Manila, the former, a practicing lawyer and a former public
prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In
other words, the order of resident thereof. In other words, the order of re-
spondent Judge of February 27, 1956, removing Rodriguez and appointing
Victorina Salud to the management of the estate, amounted to a reversal of
the aforementioned order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel
was denied by respondent Judge, the order to this effect is not, as yet, final
and executory. It is pending review on appeal taken by Aurea Matias. The
probate of said alleged will being still within realm of legal possibility, Aurea
Matias has as the universal heir and executrix designated in said instru-
ment a special interest to protect during the pendency of said appeal.
Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held
that a widow, designated as executrix in the alleged will and testament of her
deceased husband, the probate of which had denied in an order pending
appeal, "has . . . the same beneficial interest after the decision of the court
disapproving the will, which is now pending appeal, because the decision is
not yet final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among the heirs
of the deceased, namely, one, represented by the petitioner, and another, to
which Basilia Salud and Victorina Salud belong. Inasmuch as the lower court
had deemed it best to appoint more than one special administrator, justice
and equity demands that both factions be represented in the management
of the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one
special administrator may be appointed to administrator temporarily" the es-
tate of the deceased, must be considered in the light of the facts obtaining in
said case. The lower court appointed therein one special administrator for
some properties forming part of said estate, and a special administratrix for
other properties thereof. Thus, there were two (2) separate and independent
special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two
special co-administrators. In short, the Roxas case is not squarely in point.
Moreover, there are authorities in support of the power of courts to appoint
several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs.
Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs.
Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The
lower court should re-hear the matter of removal of Horacio Rodriguez and
appointment of special administrators, after due notice to all parties con-
cerned, for action in conformity with the views expressed herein, with costs
against respondents Victorina Salud and Ramon Plata. It is so ordered.
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

The only question raised by the evidence in this case as to the due execution
of the instrument propounded as a will in the court below, is whether one of
the subscribing witnesses was present in the small room where it was exe-
cuted at the time when the testator and the other subscribing witnesses at-
tached their signatures; or whether at that time he was outside, some eight
or ten feet away, in a large room connecting with the smaller room by a door-
way, across which was hung a curtain which made it impossible for one in
the outside room to see the testator and the other subscribing witnesses in
the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing

witness was in the small room with the testator and the other subscribing
witnesses at the time when they attached their signatures to the instrument,
and this finding, of course, disposes of the appeal and necessitates the affir-
mance of the decree admitting the document to probate as the last will and
testament of the deceased.

The trial judge does not appear to have considered the determination of this
question of fact of vital importance in the determination of this case, as he
was of opinion that under the doctrine laid down in the case of Jaboneta vs.
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing wit-
nesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the will. But we are
unanimously of opinion that had this subscribing witness been proven to
have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner
room, it would have been invalid as a will, the attaching of those signatures
under circumstances not being done "in the presence" of the witness in the
outer room. This because the line of vision from this witness to the testator
and the other subscribing witnesses would necessarily have been impeded
by the curtain separating the inner from the outer one "at the moment of
inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution
of a will is not whether they actually saw each other sign, but whether they
might have been seen each other sign, had they chosen to do so, consider-
ing their mental and physical condition and position with relation to each
other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to
each other at the moment of the subscription of each signature, must be such
that they may see each other sign if they choose to do so. This, of course,
does not mean that the testator and the subscribing witnesses may be held
to have executed the instrument in the presence of each other if it appears
that they would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions. The evidence
in the case relied upon by the trial judge discloses that "at the moment when
the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see eve-
rything that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so." And the deci-
sion merely laid down the doctrine that the question whether the testator and
the subscribing witnesses to an alleged will sign the instrument in the pres-
ence of each other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its subscription by each
of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper
direction they could have seen each other sign. To extend the doctrine fur-
ther would open the door to the possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for which this particular condition
is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded
therein to probate as the last will and testament of Pedro Rimando, de-
ceased, is affirmed with costs of this instance against the appellant.
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to
probate the document and its duplicate, marked as Exhibits "A" and "A-1",
as the true last will and testament of Josefa Villacorte, deceased, and ap-
pointing as executor Celso Icasiano, the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the alleged
will of Josefa Villacorte, deceased, and for the appointment of petitioner
Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and
caused notice thereof to be published for three (3) successive weeks, previ-
ous to the time appointed, in the newspaper "Manila chronicle", and also
caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed

her opposition; and on November 10, 1958, she petitioned to have herself
appointed as a special administrator, to which proponent objected. Hence,
on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of
the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of

his evidence; but on June 1, 1959, he filed a motion for the admission of an
amended and supplemental petition, alleging that the decedent left a will ex-
ecuted in duplicate with all the legal requirements, and that he was, on that
date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors Na-
tividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition
to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppos-
itor Natividad Icasiano filed her amended opposition. Thereafter, the parties
presented their respective evidence, and after several hearings the court is-
sued the order admitting the will and its duplicate to probate. From this order,
the oppositors appealed directly to this Court, the amount involved being
over P200,000.00, on the ground that the same is contrary to law and the
evidence.
The evidence presented for the petitioner is to the effect that Josefa Vil-
lacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in dupli-
cate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental wit-
nesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and
Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the
said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and testament,
together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the exe-
cution of the decedent's last will and testament, attorneys Torres and Na-
tividad were in the Philippines at the time of the hearing, and both testified
as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting
witnesses, and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he prepared
one original and two copies of Josefa Villacorte last will and testament at his
house in Baliuag, Bulacan, but he brought only one original and one signed
copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simul-
taneously with the filing of the petition and marked as Exhibit "A" consists of
five pages, and while signed at the end and in every page, it does not contain
the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on
page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix
and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the
original of the will and its duplicate were subscribed at the end and on the
left margin of each and every page thereof by the testatrix herself and at-
tested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages
of the original and duplicate of said will were duly numbered; that the attes-
tation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is
written in the language known to and spoken by the testatrix that the attes-
tation clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged be-
fore Notary Public Jose Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that

the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine
nor were they written or affixed on the same occasion as the original, and
further aver that granting that the documents were genuine, they were exe-
cuted through mistake and with undue influence and pressure because the
testatrix was deceived into adopting as her last will and testament the wishes
of those who will stand to benefit from the provisions of the will, as may be
inferred from the facts and circumstances surrounding the execution of the
will and the provisions and dispositions thereof, whereby proponents-appel-
lees stand to profit from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein, while oppositors-appel-
lants are enjoined not to look for other properties not mentioned in the will,
and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A-
1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its
duplicate were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the testatrix and Atty.
Fermin Samson, together before they were actually signed; that the attesta-
tion clause is also in a language known to and spoken by the testatrix and
the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that
the signatures of the testatrix appearing in the duplicate original were not
written by the same had which wrote the signatures in the original will leaves
us unconvinced, not merely because it is directly contradicted by expert Mar-
tin Ramos for the proponents, but principally because of the paucity of the
standards used by him to support the conclusion that the differences be-
tween the standard and questioned signatures are beyond the writer's range
of normal scriptural variation. The expert has, in fact, used as standards only
three other signatures of the testatrix besides those affixed to the original of
the testament (Exh. A); and we feel that with so few standards the expert's
opinion and the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences
that would justify the charge of forgery, taking into account the advanced age
of the testatrix, the evident variability of her signatures, and the effect of writ-
ing fatigue, the duplicate being signed right the original. These, factors were
not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the stand-
ard and challenged writings were affixed to different kinds of paper, with dif-
ferent surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the no-
tary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being
in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither (see In re Butalid,
10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil.
216). Diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The testamentary dispo-
sitions that the heirs should not inquire into other property and that they
should respect the distribution made in the will, under penalty of forfeiture of
their shares in the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which,
as shown by ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and speculators. Whether
these clauses are valid or not is a matter to be litigated on another occassion.
It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant
and exclude each other; their joining as grounds for opposing probate shows
absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to
affix his signature to one page of a testament, due to the simultaneous lifting
of two pages in the course of signing, is not per se sufficient to justify denial
of probate. Impossibility of substitution of this page is assured not only the
fact that the testatrix and two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose con-
duct she had no control, where the purpose of the law to guarantee the iden-
tity of the testament and its component pages is sufficiently attained, no in-
tentional or deliberate deviation existed, and the evidence on record attests
to the full observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsidera-
tion) "witnesses may sabotage the will by muddling or bungling it or the at-
testation clause".

That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the du-
plicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.

This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has
held that a testament, with the only page signed at its foot by testator and
witnesses, but not in the left margin, could nevertheless be probated
(Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for
the correlative lettering of the pages of a will, the failure to make the first
page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81
Phil. 429). These precedents exemplify the Court's policy to require satisfac-
tion of the legal requirements in order to guard against fraud and bid faith but
without undue or unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here into a dilemma; if
the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to the signed dupli-
cate need not be considered, being superfluous and irrelevant. At any rate,
said duplicate, Exhibit A-1, serves to prove that the omission of one signature
in the third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without
a new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented
it by disclosing the existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed amendment. It
is nowhere proved or claimed that the amendment deprived the appellants
of any substantial right, and we see no error in admitting the amended peti-
tion.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with

costs against appellants.

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAV-

ELLANA, petitioner-appellee,
vs.
DOA MATEA LEDESMA, oppositor-appellant.

Fulgencio Vega and Felix D. Bacabac for appellant.

Benjamin H. Tirot for appellee.

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to
probate the documents in the Visayan dialect, marked Exhibits D and E, as
the testament and codicil duly executed by the deceased Da. Apolinaria
Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respec-
tively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap
as witnesses. The contestant, Da. Matea Ledesma, sister and nearest sur-
viving relative of said deceased, appealed from the decision, insisting that
the said exhibits were not executed in conformity with law. The appeal was
made directly to this Court because the value of the properties involved ex-
ceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through un-
due influence. These grounds were abandoned at the hearing in the court
below, where the issue was concentrated into three specific questions: (1)
whether the testament of 1950 was executed by the testatrix in the presence
of the instrumental witnesses; (2) whether the acknowledgment clause was
signed and the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was thereby
rendered invalid and ineffective. These questions are the same ones pre-
sented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively,
of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950,
they saw and heard Vicente Yap (one of the witnesses to the will) inform the
deceased that he had brought the "testamento" and urge her to go to attor-
ney Tabiana's office to sign it; that Da. Apolinaria manifested that she could
not go, because she was not feeling well; and that upon Yap's insistence that
the will had to be signed in the attorney's office and not elsewhere, the de-
ceased took the paper and signed it in the presence of Yap alone, and re-
turned it with the statement that no one would question it because the prop-
erty involved was exclusively hers.

Our examination of the testimony on record discloses no grounds for revers-

ing the trial Court's rejection of the improbable story of the witnesses. It is
squarely contradicted by the concordant testimony of the instrumental wit-
nesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria Montinola,
who asserted under oath that the testament was executed by testatrix and
witnesses in the presence of each other, at the house of the decedent on
General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely,
and contrary to usage, that either Tabiana or Yap should have insisted that
Da. Apolinaria, an infirm lady then over 80 years old, should leave her own
house in order to execute her will, when all three witnesses could have easily
repaired thither for the purpose. Moreover, the cross-examination has re-
vealed fatal flaws in the testimony of Contestant's witnesses. Both claim to
have heard the word "testamento" for the first time when Yap used it; and
they claimed ability to recall that word four years later, despite the fact that
the term meant nothing to either. It is well known that what is to be remem-
bered must first be rationally conceived and assimilated (II Moore on Facts,
p. 884). Likewise, Maria Paderogao was positive that Yap brought the will,
and that the deceased alone signed it, precisely on March 30, 1950; but she
could remember no other date, nor give satisfactory explanation why that
particular day stuck in her mind. Worse still, Allado claimed to have heard
what allegedly transpired between Yap and Da. Apolinaria from the kitchen
of the house, that was later proved to have been separated from the de-
ceased's quarters, and standing at a much lower level, so that conversations
in the main building could not be distinctly heard from the kitchen. Later, on
redirect examination, Allado sought to cure his testimony by claiming that he
was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was
plainly induced by two highly leading questions from contestant's counsel
that had been previously ruled out by the trial Court. Besides, the contradic-
tion is hardly consonant with this witness' 18 years of service to the de-
ceased.

Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the pres-
ence or absence of Aurelio Montinola at the signing of the testament or of
the codicil, and the identity of the person who inserted the date therein, are
not material and are largely imaginary, since the witness Mrs. Tabiana con-
fessed inability to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in the codicil
and testament (like legado, partes iguales, plena propiedad) is proof that its
contents were not understood by the testatrix, it appearing in evidence that
those terms are of common use even in the vernacular, and that the de-
ceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signing
of the certificate of acknowledgment (in Spanish) appended to the Codicil in
Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who hap-
pen to be the same ones who attested the will of 1950) asserted that after
the codicil had been signed by the testatrix and the witnesses at the San
Pablo Hospital, the same was signed and sealed by notary public Gimotea
on the same occasion. On the other hand, Gimotea affirmed that he did not
do so, but brought the codicil to his office, and signed and sealed it there.
The variance does not necessarily imply conscious perversion of truth on the
part of the witnesses, but appears rather due to a well-established phenom-
enon, the tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it (II Moore on Facts, p. 878;
The Ellen McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed
the certification of acknowledgment in the presence of the testatrix and the
witnesses, does not affect the validity of the codicil. Unlike the Code of 1889
(Art. 699), the new Civil Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one single act. A compari-
son of Articles 805 and 806 of the new Civil Code reveals that while testator
and witnesses sign in the presence of each other, all that is thereafter re-
quired is that "every will must be acknowledged before a notary public by the
testator and the witnesses" (Art. 806); i.e., that the latter should avow to the
certifying officer the authenticity of their signatures and the voluntariness of
their actions in executing the testamentary disposition. This was done in the
case before us. The subsequent signing and sealing by the notary of his
certification that the testament was duly acknowledged by the participants
therein is no part of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that testaments should be com-
pleted without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the
Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no
reversible error was committed by the Court in so holding. It is noteworthy
that Article 806 of the new Civil Code does not contain words requiring that
the testator and the witnesses should acknowledge the testament on the
same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs against ap-
pellant.
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CA-
BALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR
RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO, repre-
sented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO,
and CONSESO CANEDA, represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Ad-
ministrator of the Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review
on certiorari is the issue of whether or not the attestation clause contained in
the last will and testament of the late Mateo Caballero complies with the re-
quirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower

without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three attest-
ing witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio
Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of
that last will.1 It was declared therein, among other things, that the testator
was leaving by way of legacies and devises his real and personal properties
to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not ap-
pear to be related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a peti-
tion docketed as Special Proceeding No. 3899-R before Branch II of the then
Court of First Instance of Cebu seeking the probate of his last will and testa-
ment. The probate court set the petition for hearing on August 20, 1979 but
the same and subsequent scheduled hearings were postponed for one rea-
son to another. On May 29, 1980, the testator passed away before his peti-
tion could finally be heard by the probate court.3 On February 25, 1981, Be-
noni Cabrera, on of the legatees named in the will, sough his appointment
as special administrator of the testator's estate, the estimated value of which
was P24,000.00, and he was so appointed by the probate court in its order
of March 6, 1981.4

Thereafter, herein petitioners, claiming to be nephews and nieces of the tes-

tator, instituted a second petition, entitled "In the Matter of the Intestate Es-
tate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First Instance of Cebu. On October
18, 1982, herein petitioners had their said petition intestate proceeding con-
solidated with Special Proceeding No. 3899-R in Branch II of the Court of
First Instance of Cebu and opposed thereat the probate of the Testator's will
and the appointment of a special administrator for his estate.5

Benoni Cabrera died on February 8, 1982 hence the probate court, now
known as Branch XV of the Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20,
1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of
Cebu where it remained until the conclusion of the probate proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein peti-
tioners appeared as oppositors and objected to the allowance of the testa-
tor's will on the ground that on the alleged date of its execution, the testator
was already in the poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the genu-
ineness of the signature of the testator therein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public Atty. Filoteo Manigos, testified that the testator executed the
will in question in their presence while he was of sound and disposing mind
and that, contrary to the assertions of the oppositors, Mateo Caballero was
in good health and was not unduly influenced in any way in the execution of
his will. Labuca also testified that he and the other witnesses attested and
signed the will in the presence of the testator and of each other. The other
two attesting witnesses were not presented in the probate hearing as the had
died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot

overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano La-
buca who clearly told the Court that indeed Mateo Caballero executed the
Last Will and Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the probate of
his Will during his lifetime when he caused the filing of the original petition
now marked Exhibit "D" clearly underscores the fact that this was indeed his
Last Will. At the start, counsel for the oppositors manifested that he would
want the signature of Mateo Caballero in Exhibit "C" examined by a hand-
writing expert of the NBI but it would seem that despite their avowal and
intention for the examination of this signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they abandoned the idea and instead
presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and Tes-
tament of Mateo Caballero and that it was executed in accordance with all
the requisites of the law.9

Undaunted by the said judgment of the probate court, petitioners elevated

the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its attesta-
tion clause is fatally defective since it fails to specifically state that the instru-
mental 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.

On October 15, 1991, respondent court promulgated its decision 10 affirming

that of the trial court, and ruling that the attestation clause in the last will of
Mateo Caballero substantially complies with Article 805 of the Civil Code,
thus:

The question therefore is whether the attestation clause in question may be

considered as having substantialy complied with the requirements of Art. 805
of the Civil Code. What appears in the attestation clause which the opposi-
tors claim to be defective is "we do certify that the testament was read by
him and the attestator, Mateo Caballero, has published unto us the foregoing
will consisting of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters of the upper part of each page, as his Last
Will and Testament, and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin in the pres-
ence of the said testator and in the presence of each and all of us (emphasis
supplied).

To our thinking, this is sufficient compliance and no evidence need be pre-

sented to indicate the meaning that the said will was signed by the testator
and by them (the witnesses) in the presence of all of them and of one an-
other. Or as the language of the law would have it that the testator signed
the will "in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another." If not completely or ideally perfect in ac-
cordance with the wordings of Art. 805 but (sic) the phrase as formulated is
in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent
court, but the same was denied in the latter's resolution of January 14,
1992, 12 hence this appeal now before us. Petitioners assert that respondent
court has ruled upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning once more, on
the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter,

after some prefatory observations which we feel should be made in aid of
the rationale for our resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is

permitted, with the formalities prescribed by law, to control to a certain de-
gree the disposition of his estate after his death. 13 Under the Civil Code,
there are two kinds of wills which a testator may execute.14 the first kind is
the ordinary or attested will, the execution of which is governed by Articles
804 to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testa-
tor and of one another.

The testator or the person requested by him to write his name and the instru-
mental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of the testator
and of one another.

If the attestation clause is in a language not known to the witness, it shall be

interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by
a testator and the attesting witness. 15hence it is likewise known as notarial
will. Where the attestator is deaf or deaf-mute, Article 807 requires that he
must personally read the will, if able to do so. Otherwise, he should designate
two persons who would read the will and communicate its contents to him in
a practicable manner. On the other hand, if the testator is blind, the will
should be read to him twice; once, by anyone of the witnesses thereto, and
then again, by the notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by witnesses. A common
requirement in both kinds of will is that they should be in writing and must
have been executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause

need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the lan-
guage used in the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805 merely requires that,
in such a case, the attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the at-
testing witnesses certify that the instrument has been executed before them
and to the manner of the execution the same. 19 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 es-
sential formalities required by law has been observed. 20 It is made for the
purpose of preserving in a permanent form a record of the facts that attended
the execution of a particular will, so that in case of failure of the memory of
the attesting witnesses, or other casualty, such facts may still be proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of
which would result in the invalidity of the will, 22 should state (1) the number
of the pages used upon which the will is written; (2) that the testator signed,
or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses wit-
nessed the signing by the testator of the will and all its pages, and that said-
witnesses also signed the will and every page thereof in the presence of the
testator and of one another.
The purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or de-
crease in the pages;23 whereas the subscription of the signature of the testa-
tor and the attesting witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby de-
clare the due execution of the will as embodied in the attestation
clause.25 The attestation clause, therefore, provide strong legal guaranties for
the due execution of a will and to insure the authenticity thereof.26 As it ap-
pertains only to the witnesses and not to the testator, it need be signed only
by them.27 Where it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and its witnesses.28

In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the follow-
ing manner:

The underlying and fundamental objectives permeating the provisions on the

law on wills in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in express-
ing his last wishes, but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper pressure
and influence upon the testator.

This objective is in accord with the modern tendency with respect to the for-
malities in the execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows

that it is comprised of three sheets all of which have been numbered correl-
atively, with the left margin of each page thereof bearing the respective sig-
natures of the testator and the three attesting witnesses. The part of the will
containing the testamentary dispositions is expressed in the Cebuano-Visa-
yan dialect and is signed at the foot thereof by the testator. The attestation
clause in question, on the other hand, is recited in the English language and
is likewise signed at the end thereof by the three attesting witnesses
hereto.30 Since it is the proverbial bone of contention, we reproduce it again
for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal ad-
dresses appear on the Opposite of our respective names, we do hereby cer-
tify that the Testament was read by him and the testator, MATEO CABAL-
LERO; has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered correlatively
in the letters on the upper part of each page, as his Last Will and Testament
and he has the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said testator
and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest
and subscribe to the will in the presence of the testator and of one another.
"Attestation" and "subscription" differ in meaning. Attestation is the act of
senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such,
and to certify the facts required to constitute an actual and legal publication;
but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the

testator's execution of the will in order to see and take note mentally that
those things are done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for
the purpose of identification of such paper as the will which was executed by
the testator. As it involves a mental act, there would be no means, therefore,
of ascertaining by a physical examination of the will whether the witnesses
had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in con-

travention of the express requirements of the third paragraph of Article 805
of the Civil Code for attestation clauses, fails to specifically state the fact that
the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will
and all its pages in the presence of the three attesting witnesses and states
as well the number of pages that were used, the same does not expressly
state therein the circumstance that said witnesses subscribed their respec-
tive signatures to the will in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the presence of
each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as referring only to the testa-
tor signing in the presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then
clearly lacking, in the final logical analysis , is the statement that the wit-
nesses signed the will and every page thereof in the presence of the testator
and of one another.

It is our considered view that the absence of that statement required by law
is a fatal defect or imperfection which must necessarily result in the disallow-
ance of the will that is here sought to be admitted to probate. Petitioners are
correct in pointing out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving the form of the will or
the language used therein which would warrant the application of the sub-
stantial compliance rule, as contemplated in the pertinent provision thereon
in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation
or in the language used therein shall not render the will invalid if it is not
proved that the will was in fact executed and attested in substantial compli-
ance with all the requirements of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the
end thereof and at the left margin of each page by the three attesting wit-
nesses, it certainly cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed signed, but it does not
prove that the attesting witnesses did subscribe to the will in the presence of
the testator and of each other. The execution of a will is supposed to be one
act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the
imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34 regard-
ing Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be sup-
plied by an examination of the will itself: whether all the pages are consecu-
tively numbered; whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will was notarized. All
theses are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation clause,
being the only check against perjury in the probate proceedings. (Emphasis
ours.)

3. We stress once more that under Article 809, the defects and imperfections
must only be with respect to the form of the attestation or the language em-
ployed therein. Such defects or imperfections would not render a will invalid
should it be proved that the will was really executed and attested in compli-
ance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examina-
tion of the will itself without resorting to evidence aliunde, whether oral or
written.

The foregoing considerations do not apply where the attestation clause to-
tally 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.35 In such a situa-
tion, 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 spe-
cifically stated in the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no plausible way by which
we can read into the questioned attestation clause statement, or an implica-
tion 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 wit-
nesses also signed the will and every page thereof in the presence of the
testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be re-

voked or relied on by respondents since it presupposes that the defects in
the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual re-
quirements were actually complied within the execution of the will. In other
words, defects must be remedied by intrinsic evidence supplied by the will
itself.

In the case at bar, contrarily, proof of the acts required to have been per-
formed by the attesting witnesses can be supplied by only extrinsic evidence
thereof, since an overall appreciation of the contents of the will yields no
basis whatsoever from with such facts may be plausibly deduced. What pri-
vate respondent insists on are the testimonies of his witnesses alleging that
they saw the compliance with such requirements by the instrumental wit-
nesses, oblivious of the fact that he is thereby resorting to extrinsic evidence
to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed
in resolving issues centering on compliance with the legal formalities re-
quired in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Proce-
dure. Said section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the amendment thereto
were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first
laid down in the case of Abangan vs. Abangan,36 where it was held that the
object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guarantee their truth and authenticity. Therefore, the laws on this sub-
ject should be interpreted in such a way as to attain these primordial ends.
Nonetheless, it was also emphasized that one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the
right to make a will, hence when an interpretation already given assures such
ends, any other interpretation whatsoever that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded. The subsequent cases of Avera vs.
Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs.
Coronel, Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et
40 41

al.42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory
in nature and are to be strictly construed was followed in the subsequent
cases of In the Matter of the Estate of Saguinsin,43 In re Will of Andrada,44 Uy
Coque vs. Sioca,45 In re Estate of Neumark, 46and Sano vs. Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify
the seemingly conflicting decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that the witnesses
signed the will and each and every page thereof on the left margin in the
presence of the testator. The will in question was disallowed, with these rea-
sons therefor:

In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the Matter
of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will
of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43
Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters with the
citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve
vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each and
every page thereof on the left margin in the presence of the testator is de-
fective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate the
fact that the testator and the witnesses reciprocally saw the signing of the
will, for such an act cannot be proved by the mere exhibition of the will, if it
is not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the
mere examination of the signatures appearing on the document itself, and
the omission to state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they

admit inconsistency in doctrine. Yet here, unless aided impossible to recon-
cile the Mojal and Quintana decisions. They are fundamentally at variance.
If we rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may

be mentioned. In the first place, the Mojal, decision was concurred in by only
four members of the court, less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred in by seven members of the
court, a clear majority, with one formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924, while the Quintana decision
was promulgated in December, 1925; the Quintana decision was thus sub-
sequent in point of time. And in the third place, the Quintana decision is be-
lieved more nearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The

law of the case is here found in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the same Code, as una-
mended. It is in part provided in section 61, as amended that "No will . . . shall
be valid . . . unless . . .." It is further provided in the same section that "The
attestation shall state the number of sheets or pages used, upon which the
will is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the testator and of
each other." Codal section 634 provides that "The will shall be disallowed in
either of the following case: 1. If not executed and attested as in this Act pro-
vided." The law not alone carefully makes use of the imperative, but cau-
tiously goes further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve vs.
Mojal and Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of

the Court that once more appeared to revive the seeming diversity of views
that was earlier threshed out therein. The cases of Quinto vs.
Morata,49Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate
Estate of Toray52 went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De
Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs.
Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado
vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away
from the strict interpretation rule and established a trend toward an applica-
tion of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and

of the undeniable inclination towards a liberal construction, recommended
the codification of the substantial compliance rule, as it believed this rule to
be in accord with the modern tendency to give a liberal approach to the in-
terpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of
Civil Procedure as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance with the legal formal-
ities and had even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the attestation clause
were mandatory, and non-compliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the
freedom of the testator in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap,
G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs.
Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically

gone back to the original provisions of Section 618 of the Code of Civil Pro-
cedure before its amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the main objective of the
proposed Code in the liberalization of the manner of executing wills, article
829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and im-
proper pressure and influence, defects and imperfections in the form of at-
testation or in the language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested in substantial com-
pliance with all the requirements of article 829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer
any puzzle or difficulty, nor does it open the door to serious consequences.
The later decisions do tell us when and where to stop; they draw the dividing
line with precision. They do not allow evidence aliunde to fill a void in any
part of the document or supply missing details that should appear in the will
itself. They only permit a probe into the will, an exploration into its confines,
to ascertain its meaning or to determine the existence or absence of the req-
uisite formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which
can be supplied by an examination of the will itself, without the need of re-
sorting to extrinsic evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde would result
in the invalidation of the attestation clause and ultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision

of respondent court is hereby REVERSED and SET ASIDE. The court a
quo is accordingly directed to forthwith DISMISS its Special Proceeding No.
3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of
the Intestate Estate of Mateo Caballero) as an active case and thereafter
duly proceed with the settlement of the estate of the said decedent.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL

OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of
Southern Leyte, (Branch III, Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance
of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled
"In the Matter of the Petition for Probate of the Will of Dorotea Perez, De-
ceased; Apolonio Taboada, Petitioner", which denied the probate of the will,
the motion for reconsideration and the motion for appointment of a special
administrator.

In the petition for probate filed with the respondent court, the petitioner at-
tached the alleged last will and testament of the late Dorotea Perez. Written
in the Cebuano-Visayan dialect, the will consists of two pages. The first page
contains the entire testamentary dispositions and is signed at the end or bot-
tom of the page by the testatrix alone and at the left hand margin by the three
(3) instrumental witnesses. The second page which contains the attestation
clause and the acknowledgment is signed at the end of the attestation clause
by the three (3) attesting witnesses and at the left hand margin by the testa-
trix.

Since no opposition was filed after the petitioner's compliance with the re-
quirement of publication, the trial court commissioned the branch clerk of
court to receive the petitioner's evidence. Accordingly, the petitioner submit-
ted his evidence and presented Vicente Timkang, one of the subscribing wit-
nesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the
questioned order denying the probate of the will of Dorotea Perez for want
of a formality in its execution. In the same order, the petitioner was also re-
quired to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex partepraying for a thirty-day period within
which to deliberate on any step to be taken as a result of the disallowance of
the will. He also asked that the ten-day period required by the court to submit
the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the pro-
bate of the will. However, the motion together with the previous manifestation
and/or motion could not be acted upon by the Honorable Ramon C. Pamatian
due to his transfer to his new station at Pasig, Rizal. The said motions or
incidents were still pending resolution when respondent Judge Avelino S.
Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special ad-
ministrator.

Subsequently, the new Judge denied the motion for reconsideration as well
as the manifestation and/or motion filed ex parte. In the same order of denial,
the motion for the appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order requiring him to
submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code
require that the testatrix and all the three instrumental and attesting wit-
nesses sign at the end of the will and in the presence of the testatrix and of
one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and sub-
scribed by three or more credible witnesses in the presence of the testator
and of one another.

The testator or the person requested by him to write his name and the instru-
mental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the lacier witnesses
and signed the will and the pages thereof in the presence of the testator and
of one another.

If the attestation clause is in a language not known to the witnesses, it shall

be interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to re-

quire that, for a notarial will to be valid, it is not enough that only the testatrix
signs at the "end" but an the three subscribing witnesses must also sign at
the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will
itself but also the signature of the testator. It is not sufficient compliance to
sign the page, where the end of the will is found, at the left hand margin of
that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for
the extrinsic validity of the wig that the signatures of the subscribing wit-
nesses should be specifically located at the end of the wig after the signature
of the testatrix. He contends that it would be absurd that the legislature in-
tended to place so heavy an import on the space or particular location where
the signatures are to be found as long as this space or particular location
wherein the signatures are found is consistent with good faith and the honest
frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed
or signed at its end by the testator himself or by the testator's name written
by another person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the
testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attes-
tation consists in witnessing the testator's execution of the will in order to see
and take note mentally that those things are, done which the statute requires
for the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses' names
upon the same paper for the purpose of Identification of such paper as the
will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered

view that the will in this case was subscribed in a manner which fully satisfies
the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first
page of the will attested not only to the genuineness of the signature of the
testatrix but also the due execution of the will as embodied in the attestation
clause.

While perfection in the drafting of a will may be desirable, unsubstantial de-

parture from the usual forms should be ignored, especially where the authen-
ticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objec-

tive permeating the provisions on the law on wills in this project consists in
the liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes but with suffi-
cient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency in respect to the formal-
ities in the execution of a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order

that were not for the defect in the place of signatures of the witnesses, he
would have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in
the present case when the instrumental witnesses signed at the left margin
of the sole page which contains all the testamentary dispositions, especially
so when the will was properly Identified by subscribing witness Vicente Tim-
kang to be the same will executed by the testatrix. There was no question of
fraud or substitution behind the questioned order.

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

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

The law referred to is article 618 of the Code of Civil Procedure, as amended
by Act No. 2645, which requires that the attestation clause shall state the
number of pages or sheets upon which the win is written, which requirement
has been held to be mandatory as an effective safeguard against the possi-
bility of interpolation or omission of some of the pages of the will to the prej-
udice of the heirs to whom the property is intended to be bequeathed (In re
will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echeva-
rria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems
to be that the attestation clause must contain a statement of the number of
sheets or pages composing the will and that if this is missing or is omitted, it
will have the effect of invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or examination of the will
itself. But here the situation is different. While the attestation clause does not
state the number of sheets or pages upon which the will is written, however,
the last part of the body of the will contains a statement that it is composed
of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where
a broad and more liberal view has been adopted to prevent the will of the
testator from being defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which ap-
plies a similar liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact
that the testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary public be-
fore whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose con-
duct she had no control where the purpose of the law to guarantee the Iden-
tity of the testament and its component pages is sufficiently attained, no in-
tentional or deliberate deviation existed, and the evidence on record attests
to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsidera-
tion) 'witnesses may sabotage the will by muddling or bungling it or the at-
testation clause.

WHEREFORE, the present petition is hereby granted. The orders of the re-
spondent court which denied the probate of tile will, the motion for reconsid-
eration of the denial of probate, and the motion for appointment of a special
administrator are set aside. The respondent court is ordered to allow the pro-
bate of the wig and to conduct further proceedings in accordance with this
decision. No pronouncement on costs.

SO ORDERED
In the Matter of the Probate of the Last Will and Testament of the De-
ceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. RO-
SARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associ-
ate Justices, Intermediate Appellate Court, First Division (Civil Cases),
and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 19861 of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 19832 of the Regional Trial
Court of Sta. Cruz, Laguna, admitting to probate the last will and testa-
ment3 with codicil4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial

will entitled "Huling Habilin" wherein he disinherited an illegitimate son (peti-
tioner) and expressly revoked a previously executed holographic will at the
time awaiting probate before Branch 4 of the Regional Trial Court of sta.
Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by

private respondent who were present at the execution, the testator did not
read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies
previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate
on 9 December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Ha-
bilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed
changing some dispositions in the notarial will to generate cash for the tes-
tator's eye operation. Brigido was then suffering from glaucoma. But the dis-
inheritance and revocatory clauses were unchanged. As in the case of the
notarial will, the testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his presence and in
the presence of the three instrumental witnesses (same as those of the no-
tarial will) and the notary public who followed the reading using their own
copies.

A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with
the Court of First Instance, now Regional Trial Court, of Siniloan, La-
guna.5Petitioner, in turn, filed an Opposition on the following grounds: that
the will sought to be probated was not executed and attested as required by
law; that the testator was insane or otherwise mentally incapacitated to make
a will at the time of its execution due to senility and old age; that the will was
executed under duress, or influence of fear and threats; that it was procured
by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the
signature of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon
in the Opposition, a Probate Order was issued on 27 June 1983 from which
an appeal was made to respondent court. The main thrust of the appeal was
that the deceased was blind within the meaning of the law at the time his
"Huling Habilin" and the codicil attached thereto was executed; that since the
reading required by Art. 808 of the Civil Code was admittedly not complied
with, probate of the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review
with the following findings: that Brigido Alvarado was not blind at the time his
last will and codicil were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with when both docu-
ments were read aloud to the testator with each of the three instrumental
witnesses and the notary public following the reading with their respective
copies of the instruments. The appellate court then concluded that although
Art. 808 was not followed to the letter, there was substantial compliance
since its purpose of making known to the testator the contents of the drafted
will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were exe-
cuted? If so, was the double-reading requirement of said article complied
with?

Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3)
feet" by reason of the glaucoma which he had been suffering from for several
years and even prior to his first consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify

Brigido as a "blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by
one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged.

Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope of
the term as it is used in Art. 808. To support his stand, petitioner presented
before the trial court a medical certificate issued by Dr. Salvador R. Salceda,
Director of the Institute of Opthalmology (Philippine Eye Research Insti-
tute),6 the contents of which were interpreted in layman's terms by Dr. Ru-
perto Roasa, whose expertise was admitted by private respondent.7 Dr.
Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as of
14 December 1977, the day of his first consultation.8

On the other hand, the Court of Appeals, contrary to the medical testimony,
held that the testator could still read on the day the will and the codicil were
executed but chose not to do so because of "poor eyesight."9 Since the tes-
tator was still capable of reading at that time, the court a quo concluded that
Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still ca-
pable of reading at the time his will and codicil were prepared, the fact re-
mains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective," 11 or "blurred"12 vision making it neces-
sary for private respondent to do the actual reading for him.

The following pronouncement in Garcia vs. Vasquez 13 provides an insight

into the scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he
is blind or incapable of reading the will himself (as when he is illiterate), is to
make the provisions thereof known to him, so that he may be able to object
if they are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators
but also to those who, for one reason or another, are "incapable of reading
the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due
to his "poor," "defective," or "blurred" vision, there can be no other course for
us but to conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to him, he had
no way of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to consider his will as
validly executed and entitled to probate, it is essential that we ascertain
whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will
shall be read twice; once, by one of the instrumental witnesses and, again,
by the notary public before whom the will was acknowledged. The purpose
is to make known to the incapacitated testator the contents of the document
before signing and to give him an opportunity to object if anything is contrary
to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent)
who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808
requires.

Private respondent however insists that there was substantial compliance

and that the single reading suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an instru-
mental witness read the contents of the will and codicil to Brigido, probate of
the latter's will and codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be

denied.

This Court has held in a number of occasions that substantial compliance is

acceptable where the purpose of the law has been satisfied, the reason be-
ing that the solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are never intended
to be so rigid and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud
in the presence of the testator, his three instrumental witnesses, and the no-
tary public. Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his instructions. Only then
did the signing and acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will and codicil were
not sufficiently made known and communicated to the testator. On the con-
trary, with respect to the "Huling Habilin," the day of the execution was not
the first time that Brigido had affirmed the truth and authenticity of the con-
tents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido
Alvarado already acknowledged that the will was drafted in accordance with
his expressed wishes even prior to 5 November 1977 when Atty. Rino went
to the testator's residence precisely for the purpose of securing his conform-
ity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instru-
mental witnesses likewise read the will and codicil, albeit silently. Afterwards,
Atty. Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente
(one of the three instrumental witnesses and the testator's physician) asked
the testator whether the contents of the document were of his own free will.
Brigido answered in the affirmative. 16 With four persons following the reading
word for word with their own copies, it can be safely concluded that the tes-
tator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses were persons known
to the testator, one being his physician (Dr. Evidente) and another (Poten-
ciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of the
law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Pro-
bate Order and its affirmance by the Court of Appeals, we quote the following
pronouncement in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid the substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on the subject should be interpreted in such a way as to attain these primor-
dial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator's
will, must be disregarded(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are unwill-
ing to cast these aside fro the mere reason that a legal requirement intended
for his protection was not followed strictly when such compliance had been
rendered unnecessary by the fact that the purpose of the law, i.e., to make
known to the incapacitated testator the contents of the draft of his will, had
already been accomplished. To reiterate, substantial compliance suffices
where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respond-

ent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the
length of time that this case has remained pending, this decision is immedi-
ately executory. Costs against petitioner.
 EN BANC

[G.R. No. L-26615. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CON-
RADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch and CONSUELO GONZALES VDA. DE PRECILLA, Respondents.

[G.R. No. L-26884. April 30, 1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON. CON-
RADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES
VDA. DE PRECILLA, Respondents.

[G.R. No. L-27200. April 30, 1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.

GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA NAR-
CISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NAR-
CISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL.,
NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANA-
HAN, Oppositors-Appellants.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.

Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for res-
pondent Consuelo S. Gonzales Vda. de Precilla.

Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro

Sevilla & Ramon C. Aquino for petitioner administratrix.

Castro, Makalintal & Associates for oppositors-appellants Encarnacion

Narciso, Et. Al.

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and

Antonio Jesus de Praga.
 Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants
Severina Narciso, Et. Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-ap-
pellants Natividad del Rosario Sarmiento, Et. Al.

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOW-

ANCE; TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVI-
SIONS OF LATER WILL. The declarations in court of the opthalmologist as to the
condition of the testatrixs eyesight fully establish the fact that her vision remained
mainly for viewing distant objects and not for reading print; that she was, at the time
of the execution of the second will on December 29, 1960, incapable of reading and
could not have read the provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE
AT BAR. Upon its face, the testamentary provisions, the attestation clause and ac-
knowledgment were crammed together into a single sheet of paper, apparently to
save on space. Plainly, the testament was not prepared with any regard for the de-
fective vision of Da. Gliceria, the typographical errors remained uncorrected thereby
indicating that the execution thereof must have been characterized by haste. It is
difficult to understand that so important a document containing the final disposition
of ones worldly possessions should be embodied in an informal and untidy written
instrument; or that the glaring spelling errors should have escaped her notice if she
had actually retained the ability to read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW
CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.
The rationale behind the requirement of reading the will to the testator if he is blind
or incapable of reading the will himself is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where as
in the 1960 will there is nothing in the record to show that the requisites of Art. 808
of the Civil Code of the Philippines that "if the testator is blind, the will shall be read
to him twice," have not been complied with, the said 1960 will suffer from infirmity
that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRA-

TORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF
THE ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST;
CASE AT BAR. Considering that the alleged deed of sale was executed when Gliceria
del Rosario was already practically blind and that the consideration given seems un-
conscionably small for the properties, there was likelihood that a case for annulment
might be filed against the estate or heirs of Alfonso Precilla. And the administratrix
being the widow and heir of the alleged transferee, cannot be expected to sue herself
in an action to recover property that may turn out to belong to the estate. This, plus
her conduct in securing new copies of the owners duplicate of titles without the
courts knowledge and authority and having the contract bind the land through issu-
ance of new titles in her husbands name, cannot but expose her to the charge of
unfitness or unsuitability to discharge the trust, justifying her removal from the ad-
ministration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR
THE RIGHT OF POSSESSION OF REAL PROPERTY." On the matter of lis pendens,
the provisions of the Rules of Court are clear: notice of the pendency of an action
may be recorded in the office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right of possession of (such)
real property."cralaw virtua1aw library

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in controversy here
is simply the fitness or unfitness of said special administratrix to continue holding the
trust, it does not involve or affect at all the title to, or possession of, the properties
covered by TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case
(L-26615) is not an action that can properly be annotated in the record of the titles
to the properties.

DECISION

REYES, J.B.L., J.:

G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila
(in Sp. Proc. No. 62618) admitting to probate the alleged last will an, testament of
the late Gliceria Avelino del Rosario dated 29 December 1960. G.R. Nos. L-26615 and
L-2684 are separate petitions for mandamus filed by certain alleged heirs of said
decedent seeking (1) to compel the probate court to remove Consuelo S. Gonzales-
Precilla as special administratrix of the estate, for conflict of interest, to appoint a
new one in her stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name
of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said to be properly
belonging to the estate of the deceased Gliceria A. del Rosario.

Insofar as pertinent to the issues involved herein, the facts of these cases may be
stated as follows: chanrob1es virtual 1aw library

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September
1965, leaving no descendents, ascendants, brother or sister. At the time of her death,
she was said to be 90 years old more or less, and possessed of an estate consisting
mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the de-
ceased, petitioned the Court of First Instance of Manila for probate of the alleged last
will and testament of Gliceria A. del Rosario, executed on 29 December 1960, and
for her appointment as special administratrix of the latters estate, said to be valued
at about P100,000.00, pending the appointment of a regular administrator thereof.

The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr.
Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del Rosario
on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in both the
1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of
the deceased and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion,
and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria
Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five groups of per-
sons all claiming to be relatives of Doa Gliceria within the fifth civil degree. The
oppositions invariably charged that the instrument executed in 1960 was not in-
tended by the deceased to be her true will; that the signatures of the deceased ap-
pearing in the will was procured through undue and improper pressure and influence
the part of the beneficiaries and/or other persons; that the testatrix did not know the
object of her bounty; that the instrument itself reveals irregularities in its execution,
and that the formalities required by law for such execution have not been complied
with.

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the de-
ceased, joined the group of Dr. Jaime Rosario in registering opposition to the ap-
pointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special administra-
trix, on the ground that the latter possesses interest adverse to the estate. After the
parties were duly heard, the probate court, in its order of 2 October 1965, granted
petitioners prayer and appointed her special administratrix of the estate upon a bond
for P30,000.00. The order was premised on the fact the petitioner was managing the
properties belonging to the estate even during the lifetime of the deceased, and to
appoint another person as administrator or co administrator at that stage of the pro-
ceeding would only result in further confusion and difficulties.

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate court
an urgent motion to require the Hongkong & Shanghai Bank to report all withdrawals
made against the funds of the deceased after 2 September 1965. The court denied
this motion on 22 October 1965 for being premature, it being unaware that such
deposit in the name of the deceased existed. 1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children,
Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the
court for the immediate removal of the special administratrix. It was their claim that
the special administratrix and her deceased husband, Alfonso Precilla, 2 had caused
Gliceria A. del Rosario to execute a simulated and fraudulent deed of absolute sale
dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon located on
Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00. Oppos-
itors contended that since it is the duty of the administrator to protect and conserve
the properties of the estate, and it may become necessary that, an action for the
annulment of the deed of sale land for recovery of the aforementioned parcels of land
be filed against the special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.

On 17 December 1965, the same oppositors prayed the court for an order directing
the Special Administratrix to deposit with the Clerk of Court all certificates of title
belonging to the estate. It was alleged that on 22 October 1965, or after her appoint-
ment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special ad-
ministratrix of the estate of the deceased Gliceria A. del Rosario, filed with Branch IV
of the Court of First Instance of Manila a motion for the issuance of new copies of the
owners duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the properties
constituting the estate. The motion having been granted, new copies of the owners
duplicates of certificates appearing the name of Gliceria del Rosario (among which
were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8
December 1965, according to the oppositors, the same special administratrix pre-
sented to the Register of Deeds the deed of sale involving properties covered by TCT
Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10
January 1961 in favor of Alfonso Precilla, and, in consequence, said certificates of
title were cancelled and new certificates (Nos. 81735, 81736 and 81737) were issued
in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.

On 25 August 1966, the Court issued an order admitting to probate the 1960 will of
Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will, the
probate court took note that no evidence had been presented to establish that the
testatrix was not of sound mind when the will was executed; that the fact that she
had prepared an earlier will did not, prevent her from executing another one there-
after; that the fact that the 1956 will consisted of 12 pages whereas the 1960 testa-
ment was contained in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which were noted by
the oppositors are even indicative of their truthfulness. The probate court, also con-
sidering that petitioner had already shown capacity to administer the properties of
the estate and that from the provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner regular administratrix
with a bond for P50,000.00. From this order all the oppositors appealed, the case
being docketed in this Court as G.R. No. L-27200.

Then, on 13 September 1966, the probate court resolved the oppositors motion of
14 December 1965 for the removal of the then special administratrix, as follows: jgc:chanrobles.com.ph

"It would seem that the main purpose of the motion to remove the special adminis-
tratrix and to appoint another one in her stead, is in order that an action may be filed
against the special administratrix for the annulment of the deed of sale executed by
the decedent on January 10, 1961. Under existing documents, the properties sold
pursuant to the said deed of absolute sale no longer forms part of the estate. The
alleged conflict of interest is accordingly not between different claimants of the same
estate. If it is desired by the movants that an action be filed by them to annul the
aforesaid deed absolute sale, it is not necessary that the special administratrix be
removed and that another one be appointed to file such action. Such a course of
action would only produce confusion and difficulties in the settlement of the estate.
The movants may file the aforesaid proceedings, preferably in an independent action,
to secure the nullity of the deed of absolute even without leave of this court:"

As regard the motion of 17 December 1965 asking for the deposit in court of the
titles in the name of the decedent, the same was also denied, for the reason that if
the movants were referring to the old titles, they could no longer be produced, and
if they meant the new duplicate copies thereof that were issued at the instance of
the special administratrix, there would be no necessity therefor, because they were
already cancelled and other certificates were issued in the name of Alfonso Precilla.
This order precipitated the oppositors filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M.
Vasquez, Et. Al.), which was given due course on 6 October 1966.

On 15 December 1965, with that motion for removal pending in the court, the op-
positors requested the Register of Deeds of Manila to annotate a notice of lis pendens
in the records of TCT Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla.
And when said official refused to do so, they applied to the probate court (in Sp. Proc.
No. 62618) for an order to compel the Register of Deeds to annotate a lis pendens
notice in the aforementioned titles contending that the matter of removal and ap-
pointment of the administratrix, involving TCT Nos. 81735, 81736, and 81737, was
already before the Supreme Court. Upon denial of this motion on 12 November 1966,
oppositors filed another mandamus action, this time against the probate court and
the Register of Deeds. The case was docketed and given due course in this Court as
G.R. No. L-26864.

Foremost of the questions to be determined here concerns the correctness of the

order allowing the probate of the 1960 will.

The records of the probate proceeding fully establish the fact that the testatrix, Glic-
eria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956 con-
sisting of 12 pages and written in Spanish, a language that she knew and spoke,
witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente
Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.

Called to testify on the due execution of the 1960 will, instrumental witnesses De-
cena, Lopez and Rosales uniformly declared that they were individually requested by
Alfonso Precilla (the late husband of petitioner special administratrix) to witness the
execution of the last will of Doa Gliceria A. del Rosario; that they arrived at the
house of the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was apparently of clear
and sound mind, although she was being aided by Precilla when she walked; 3 that
the will, which was already prepared, was first read "silently" by the testatrix herself
before she signed it; 4 that he three witnesses thereafter signed the will in the pres-
ence of the testatrix and the notary public and of one another. There is also testimony
that after the testatrix and the witnesses to the will acknowledged the instrument to
be their voluntary act and deed, the notary public asked for their respective residence
certificates which were handed to him by Alfonso Precilla, clipped together; 5 that
after comparing them with the numbers already written on the will, the notary public
filled in the blanks in the instrument with the date, 29 January 1960, before he affixed
his signature and seal thereto. 6 They also testified that on that occasion no pressure
or influence has been exerted by any person upon the testatrix to execute the will.

Of course, the interest and active participation of Alfonso Precilla in the signing of
this 1960 will are evident from the records. The will appeared to have been prepared
by one who is not conversant with the spelling of Tagalog words, and it has been
shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent.
7 The witnesses to the will, two of whom are fellow Visayans, 8 admitted their rela-
tionship or closeness to Precilla. 9 It was Precilla who instructed them to go to the
house of Gliceria del Rosario on 29 December 1960 to witness an important docu-
ment, 10 and who took their residence certificates from them a few days before the
will was signed. 11 Precilla had met the notary public and witnesses Rosales and
Lopez at the door of the residence of the old woman; he ushered them to the room
at the second floor where the signing of the document took place; 12 then he fetched
witness Decena from the latters haberdashery shop a few doors away and brought
him to, the house the testatrix. 13 And when the will was actually executed Precilla
was present. 14

The oppositors-appellants in the present case, however, challenging the correctness

of the probate courts ruling, maintain that on 29 December 1960 the eyesight of
Gliceria del Rosario was so poor and defective that she could not have read the pro-
visions of the will, contrary to the testimonies of witnesses Decena, Lopez and
Rosales.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material
and illuminating. Said ophthalmologist, whose expertise was admitted by both par-
ties, testified, among other things, that when Doa Gliceria del Rosario saw him for
consultation on 11 March 1960 he found her left eye to have cataract (opaque lens),
15 and that it was "above normal in pressure", denoting a possible glaucoma, a dis-
ease that leads to blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph

"Q But is there anything here in the entry appearing in the other documents Exhibits
3-B, 3-C and 3-D from which you could inform the court as to the condition of the
vision of the patient as to the right eve?

"A Under date of August 30, 1960, is the record of refraction. that is setting of glass
by myself which showed that the right eye with my prescription of glasses had a
vision of 2 over 60 (20/60) and for the left eye with her correction 20 over 300
(20/300).

"Q In laymans language, Doctor, what is the significance of that notation that the
right had a degree of 20 over 60 (20/60)?

"A It meant that eye at least would be able to recognize objects or persons at a
minimum distance of twenty feet.

"Q But would that grade enable the patient to read print?

"A Apparently that is only a record for distance vision, for distance sight, not for
near."cralaw virtua1aw library

(pages 20-21, t.s.n., hearing of 23 March 1966)

The records also show that although Dr. Tamesis operated of the left eye of the
decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, inspite of
the glasses her vision was only "counting fingers," 17 at five feet. The cross-exami-
nation of the doctor further elicited the following responses: jgc:chanrobles.com.ph

"Q After she was discharged from the hospital you prescribed lenses for her, or
glasses?

"A After her discharge from the hospital, she was coming to my clinic for further
examination and then sometime later glasses were prescribed.

x x x

"Q And the glasses prescribed by you enabled her to read, Doctor?

"A As far as my record is concerned, with the glasses for the left eye which I pre-
scribed the eye which I operated she could see only forms but not read. That is
on the left eye.

"Q How about the right eye?

"A The same, although the vision on the right eye is even better than the left eye."
(pages 34. 85. t.s.n., hearing of 23 March 1966).

Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November

1965 certifying that Gliceria del Rosario was provided with aphakic lenses and "had
been under medical supervision up to 1963 with apparently good vision", the doctor
had this to say: jgc:chanrobles.com.ph

"Q When yon said that she had apparently good vision you mean that she was able
to read?
"A No, not necessarily, only able to go around, take care of herself and see. This I
can tell you, this report was made on pure recollections and I recall she was using
her glasses although I recall also that we have to give her medicines to improve her
vision, some medicines to improve her identification some more.

x x x

"Q What about the vision in the right eve, was that corrected by the glasses?

"A Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical
record.

"Q The vision in the right eye was corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).

The foregoing testimony of the ophthalmologist who treated the deceased and, there-
fore, has first hand knowledge of the actual condition of her eyesight from August,
1960 up to 1963, fully establish the fact that notwithstanding the operation and re-
moval of the cataract in her left eye and her being fitted with aphakic lens (used by
cataract patients), her vision remained mainly for viewing distant objects and not for
reading print. Thus, the conclusion is inescapable that with the condition of her eye-
sight in August, 1960, and there is no evidence that it had improved by 29 December
1960, Gliceria del Rosario was incapable f reading, and could not have read the pro-
visions of the will supposedly signed by her on 29 December 1960. It is worth noting
that the instrumental witnesses stated that she read the instrument "silently" (t.s.n.,
pages 164-165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance
of the will, Exhibit "D", acquires striking significance. Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed together into
a single sheet of paper, to much so that the words had to be written very close on
the top, bottom and two sides of the paper, leaving no margin whatsoever; the word
"and" had to be written by the symbol" &", apparently to save on space. Plainly, the
testament was not prepared with any regard for the defective vision of Doa Gliceria.
Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Al-
fonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and
"acknowledged" for "acknowledge, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand
that so important a document containing the final disposition of ones worldly pos-
sessions should be embodied in an informal and untidily written instrument; or that
the glaring spelling errors should have escaped her notice if she had actually retained
the ability to read the purported will and had done so. The record is thus convincing
that the supposed testatrix could not have physically read or understood the alleged
testament, Exhibit "D", and that its admission to probate was erroneous and should
be reversed.

That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers
and attend to kitchen tasks shortly prior to the alleged execution of the testament
Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in no way proves;
that she was able to read a closely typed page, since the acts shown do not require
vision at close range. It must be remembered that with the natural lenses removed,
her eyes had lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G"
to "G-3") by her indicative of ability to see at normal reading distances. Writing or
signing of ones name, when sufficiently practiced, becomes automatic, so that one
need only to have a rough indication of the place where the signature is to be affixed
in order to be able to write it. Indeed, a close examination of the checks, amplified
in the photograph, Exhibit "O", et seq., reinforces the contention of oppositors that
the alleged testatrix could not see at normal reading distance: the signatures in the
checks are written far above the printed base, lines, and the names of the payees as
well as the amounts written do not appear to be in the handwriting of the alleged
testatrix, being in a much firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del
Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due
execution of her will would have required observance of the provisions of Article 808
of the Civil Code.

"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." cralaw virtua1aw library

The rationale behind the requirement of reading the will to the testator if he is blind
or incapable of reading the will himself (as when he is illiterate), 18 is to make the
provisions thereof known to him, so that he may be able to object if they are not in
accordance with his wishes. That the aim of the law is to insure that the dispositions
of the will are properly communicated to and understood by the handicapped testa-
tor, thus making them truly reflective of his desire, is evidenced by the requirement
that the will should be read to the latter, not only once but twice, by two different
persons, and that the witnesses have to act within the range of his (the testators)
other senses. 19

In connection with the will here in question, there is nothing in the records to show
that the above requisites have been complied with. Clearly, as already stated, the
1960 will sought to be probated suffers from infirmity that affects its due execution.

We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against the
denial by the probate court of their petition for the removal of Consuelo Gonzales
Vda. de Precilla as special administratrix of the estate of the deceased Doa Gliceria
(Petition, G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in the special adminis-
tratrix of an interest adverse to that of the estate. It was their contention that through
fraud her husband had caused the deceased Gliceria del Rosario to execute a deed
of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed
unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the ownership
of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the
sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966 (Annex
"P", Petition) reasoned out that since the properties were already sold no longer form
part of the estate. The conflict of interest would not be between the estate and third
parties, but among the different claimants of said properties, in which case, according
to the court, the participation of the special administratrix in the action for annulment
that may be brought would not be necessary.

The error in this line of reasoning lies in the fact that what was being questioned was
precisely the validity of the conveyance or sale of the properties. In short, if proper,
the action for annulment would have to be undertaken on behalf of the estate by the
special administratrix, affecting as it does the property or rights of the deceased. 20
For the rule is that only where there is no special proceeding for the settlement of
the estate of the deceased may the legal heirs commence an action arising out of a
right belonging to their ancestor. 21

There is no doubt that to settle the question of the due execution and validity of the
deed of sale, an ordinary and separate action would have to be instituted, the matter
not falling within the competence of the probate court. 22 Considering the facts then
before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario
on 10 January 1961, when she was already practically blind; and that the consider-
ation of P30,000.00 seems to be unconscionably small for properties with a total
assessed value of P334,050.00, there was likelihood that a case for annulment might
indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix,
being the widow and heir of the alleged transferee, cannot be expected to sue herself
in an action to recover property that may turn out to belong to the estate. 22 Not
only this, but the conduct of the special administratrix in securing new copies of the
owners duplicates of TCT Nos. 66201, 66202, and 66204, without the courts
knowledge or authority, and on the pretext that she needed them in the preparation
of the inventory of the estate, when she must have already known by then that the
properties covered therein were already "conveyed" to her husband by the deceased,
being the latters successor, and having the contract bind the land through issuance
of new titles in her husbands name cannot but expose her to the charge of unfitness
or unsuitableness to discharge the trust, justifying her removal from the administra-
tion of the estate.

With respect to the orders of the court a quo denying (1) the oppositors motion to
require the Hongkong and Shanghai Bank to report all withdrawals made against the
funds of the deceased after 2 September 1965 and (2) the motion for annotation of
a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be af-
firmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it
could not have taken action on the complaint against the alleged withdrawals from
the bank deposits of the deceased, because as of that time the court had not yet
been apprised that such deposits exist. Furthermore, as explained by the special ad-
ministratrix in her pleading of 30 October 1965, the withdrawals referred to by the
oppositors could be those covered by checks issued in the name of Gliceria del Rosario
during her lifetime but cleared only after her death. That explanation, which not only
appears plausible but has not been rebutted by the petitioners-oppositors, negates
any charge of grave abuse in connection with the issuance of the order here in ques-
tion.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court
are clear: notice of the pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is situated, if the action affects
"the title or the right of possession of (such) real property." 23 In the case at bar,
the pending action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No.
L-26615). As previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the motion for the
removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the late Gliceria del Rosario. In short, the issue in controversy there is simply the
fitness or unfitness of said special administratrix to continue holding the trust; it does
not involve or affect at all the title to, or possession of, the properties covered by
said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such case (L-
26615) is not an action that can properly be annotated in the record of the titles to
the properties.

FOR THE FOREGOING REASONS, the order of the court below allowing to probate the
alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set aside. The
petition in G.R. No. L-26615 being meritorious, the appealed order is set aside and
the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de
Precilla, and appoint one of the heirs intestate of the deceased Doa Gliceria Avelino
del Rosario as special administrator for the purpose of instituting action on behalf of
her estate to recover the properties allegedly sold by her to the late Alfonso D. Pre-
cilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, re-
spondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First
Division,1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which re-
versed the decision of the Court of First Instance of Rizal dated December
15, 1964 and allowed the probate of the last will and testament of the de-
ceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santi-
ago filed a petition with the Court of First Instance of Rizal docketed as Spe-
cial Proceedings No. 3617, for the probate of a will alleged to have been
executed by the deceased Isabel Gabriel and designating therein petitioner
as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as
a widow and without issue in the municipality of Navotas, province of Rizal
her place of residence, on June 7, 1961 at the age of eighty-five (85), having
been born in 1876. It is likewise not controverted that herein private respond-
ent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces
of the deceased, and that private respondent, with her husband and children,
lived with the deceased at the latters residence prior an- d up to the time of
her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Taga-
log, appears to have been executed in Manila on the 15th day of April, 1961,
or barely two (2) months prior to the death of Isabel Gabriel. It consists of
five (5) pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the de-
ceased Isabel Gabriel appear at the end of the will on page four and at the
left margin of all the pages. The attestation clause, which is found on page
four, reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan
ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba
nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni
Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING
HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora
na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan
na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito,
at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin
of each and every page), sa harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap
ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa
kaliwang panig ng lahat at bawa't dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signa-
tures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and
opposite the same, under the heading "Tirahan", are their respective places
of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala
St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on
the left margin of all the other pages. The WW is paged by typewritten words
as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Da-
hon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Cath-
olic Church, all expenses to be paid from her estate; that all her obligations,
if any, be paid; that legacies in specified amounts be given to her sister,
Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her
nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria,
Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, An-
drea, Marcial, Numancia, Verena an surnamed Santiago. To herein private
respondent Lutgarda Santiago, who was described in the will by the testatrix
as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na
katulad ng isang tunay na anak" and named as universal heir and executor,
were bequeathed all properties and estate, real or personal already ac-
quired, or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,

assailing the document purporting to be the will of the deceased on the fol-
lowing grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative

4. That the purported WW was procured through undue and improper pres-
sure and influence on the part of the principal beneficiary, and/or of some
other person for her benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962.

After trial, the court a quo rendered judgment, the summary and dispositive
portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court
finds:

1. That there is no iota of evidence to support the contentio that the purported
will of the deceased was procured through undue and improper pressure and
influence on the part of the petitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time
of the alleged execution of the purported will, the deceased lacked testamen-
tary capacity due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that
the purported will of the deceased was not executed and attested as required
by law;
4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported win allegedly dictated by the de-
ceased, executed and signed by her, and attested by her three attesting wit-
nesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last
wig and testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to re-

spondent Court, hence, the only issue decided on appeal was whether or not
the will in question was executed and attested as required by law. The Court
of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holding that the will in question was
signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the
presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya
and Maria Gimpaya, signing and witnessing the document in the presence
of the deceased and of each other as required by law, hence allow ed pro-
bate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the

aforesaid decision and such motion was opposed 4 by petitioner-appellant
Lutgarda Santiago. Thereafter. parties submitted their respective Memo-
randa, 5and on August 28, 1973, respondent Court, Former Special First Di-
vision, by Resolution 6 denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows

that the supposed last wig and testament of Isabel Gabriel was not executed
in accordance with law because the same was signed on several occasions,
that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.

The resolution of the factual issue raised in the motion for reconsideration
hinges on the appreciation of the evidence. We have carefully re-examined
the oral and documentary evidence of record, There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales con-
tends that respondent Court abused its discretion and/or acted without or in
excess of its jurisdiction in reverssing the findings of fact and conclusions of
the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the
respondents to comment thereon, which comment was filed on Nov. 14,
1973. Upon consideration of the allegations, the issues raised and the argu-
ments adduced in the petition, as well as the Comment 8 of private respond-
ent thereon, We denied the petition by Resolution on November 26,
1973, 9 the question raised being factual and for insufficient showing that the
findings of fact by respondent Court were unsupported by substantial evi-
dence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried

a Motion for Reconsideration 10 which private respondent answered by way
of her Comment or Opposition 11 filed on January 15, 1974. A Reply and Re-
joinder to Reply followed. Finally, on March 27, 1974, We resolved to give
due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Ex-
hibit "F" was executed and attested as required by law when there was ab-
solutely no proof that the three instrumental witnesses were credible witness

II. The Court of Appeals erred in reversing the finding of the lower court that
the preparation and execution of the win Exhibit "F", was unexpected and
coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewrit-
ten lines under the typewritten words "Pangalan" and "Tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all present
in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was
incredible that Isabel Gabriel could have dictated the wilt Exhibit "F , without
any note or document, to Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that
Matilde Orobia was not physically present when the Will Exhibit "F" was al-
legedly signed on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the win was improperly exe-
cuted.

VIII. The Court of Appeals erred in holding that the grave contradictions, eva-
sions, and misrepresentations of witnesses (subscribing and notary) pre-
sented by the petitioner had been explained away, and that the trial court
erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has
so far departed from the accepted and usual course of judicial proceedings,
as to call for an exercise of the power of supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the
deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are sub-
stantially factual in character and content. Hence, at the very outset, We
must again state the oft-repeated and well-established rule that in this juris-
diction, the factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has been stated
and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488,
June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February
27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptisia vs.
Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Cat-
indig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA
83, 88). In the case of Chan vs. CA, this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the
then Justice Recto, it has been well-settled that the jurisdiction of tills Court
in cases brought to us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive.
More specifically, in a decision exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that the same principle is appli-
cable, even if the Court of Appeals was in disagreement with the lower court
as to the weight of the evidence with a consequent reversal of its findings of
fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported
by substantive evidence are not reviewable on appeal by certiorari. Said find-
ings of the appellate court are final and cannot be disturbed by Us particularly
because its premises are borne out by the record or based upon substantial
evidence and what is more, when such findings are correct. Assignments of
errors involving factual issues cannot be ventilated in a review of the decision
of the Court of Appeals because only legal questions may be raised. The
Supreme Court is not at liberty to alter or modify the facts as set forth in the
decision of the Court of Appeals sought to be reversed. Where the findings
of the Court of Appeals are contrary to those of the trial court, a minute scru-
tiny by the Supreme Court is in order, and resort to duly-proven evidence
becomes necessary. The general rule We have thus stated above is not
without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now pro-
ceed to consider petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Ap-
peals erred in holding that the document, Exhibit "F", was executed and at-
tested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the require.
ment in Article 806, Civil Code, that the witnesses must be credible is an
absolute requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible witness,
there must be evidence on record that the witness has a good standing in
his community, or that he is honest and upright, or reputed to be trustworthy
and reliable. According to petitioner, unless the qualifications of the witness
are first established, his testimony may not be favorably considered. Peti-
tioner contends that the term "credible" is not synonymous with "competent"
for a witness may be competent under Article 820 and 821 of the Civil Code
and still not be credible as required by Article 805 of the same Code. It is
further urged that the term "credible" as used in the Civil Code should receive
the same settled and well- known meaning it has under the Naturalization
Law, the latter being a kindred legislation with the Civil Code provisions on
wigs with respect to the qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the

Civil Code provides the qualifications of a witness to the execution of wills
while Article 821 sets forth the disqualification from being a witness to a win.
These Articles state:
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 806 of this Code. "Art. 821. The
following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or

false testimony.

Under the law, there is no mandatory requirement that the witness testify
initially or at any time during the trial as to his good standing in the commu-
nity, his reputation for trustworthythiness and reliableness, his honesty and
uprightness in order that his testimony may be believed and accepted by the
trial court. It is enough that the qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the soundness of his mind can be
shown by or deduced from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his appearance, testimony , or
competently proved otherwise, as well as the fact that he is not blind, deaf
or dumb and that he is able to read and write to the satisfaction of the Court,
and that he has none of the disqualifications under Article 821 of the Civil
Code. We reject petitioner's contention that it must first be established in the
record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because
such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible"
as used in the Civil Code should be given the same meaning it has under
the Naturalization Law where the law is mandatory that the petition for natu-
ralization must be supported by two character witnesses who must prove
their good standing in the community, reputation for trustworthiness and re-
liableness, their honesty and uprightness. The two witnesses in a petition for
naturalization are character witnesses in that being citizens of the Philip-
pines, they personally know the petitioner to be a resident of the Philippines
for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the
qualifications necessary to become a citizen of the Philippines and is not in
any way disqualified under the provisions of the Naturalization Law (Section
7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character wit-
nesses for they merely attest the execution of a will or testament and affirm
the formalities attendant to said execution. And We agree with the respond-
ent that the rulings laid down in the cases cited by petitioner concerning char-
acter witnesses in naturalization proceedings are not applicable to instru-
mental witnesses to wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumen-
tal witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya,
are competent and credible is satisfactorily supported by the evidence as
found by the respondent Court of Appeals, which findings of fact this Tribunal
is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown
that anyone of them is below 18 years of age, of unsound mind, deaf or
dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than
a holographic will, must be subscribed at the end thereof by the testator him-
self or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another,
While the petitioner submits that Article 820 and 821 of the New Civil Code
speak of the competency of a witness due to his qualifications under the first
Article and none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible witnesses, peti-
tioner concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to being competent un-
der Articles 820 and 821 must also be a credible witness under Article 805.

Petitioner cites American authorities that competency and credibility of a wit-

ness are not synonymous terms and one may be a competent witness and
yet not a credible one. She exacerbates that there is no evidence on record
to show that the instrumental witnesses are credible in themselves, that is,
that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true
that Celso Gimpaya was the driver of the testatrix and his wife Maria
Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano
teacher to a grandchild of the testatrix But the relation of employer and em-
ployee much less the humble or financial position of a person do not disqual-
ify him to be a competent testamentary witness. (Molo Pekson and Perez
Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off.
Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more

credible witnesses mentioned in Article 805 of the Civil Code are those men-
tioned in Article 820 of the same Code, this being obvious from that portion
of Article 820 which says "may be Q witness to the execution of a will men-
tioned in Article 805 of this Code," and cites authorities that the word "credi-
ble" insofar as witnesses to a will are concerned simply means " competent."
Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held
that "Granting that a will was duly executed and that it was in existence at
the time of, and not revoked before, the death of the testator, still the provi-
sions of the lost wig must be clearly and distinctly proved by at least two
credible witnesses. 'Credible witnesses' mean competent witnesses and not
those who testify to facts from or upon hearsay. " emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil Procedure
provides that 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. This same provision is reproduced in our
New Civil Code of 1950, under Art. 820. The relation of employer and em-
ployee, or being a relative to the beneficiary in a win, does not disqualify one
to be a witness to a will. The main qualification of a witness in the attestation
of wills, if other qualifications as to age, mental capacity and literacy are pre-
sent, is that said witness must be credible, that is to say, his testimony may
be entitled to credence. There is a long line of authorities on this point, a few
of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity,

crime, or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619,
226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'com-

petent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A,
837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'com-
petent witness that is, one competent under the law to testify to fact of exe-
cution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of
Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the
time of attesting the will, are legally competent to testify, in a court of justice,
to the facts attested by subscribing the will, the competency being deter-
mined as of the date of the execution of the will and not of the timr it is offered
for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent

witnesses that is, such persons as are not legally disqualified from testi-
fying in courts of justice, by reason of mental incapacity, interest, or the com-
mission of crimes, or other cause excluding them from testifying generally,
or rendering them incompetent in respect of the particular subject matter or
in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322
111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness

to a will is determined by the statute, that is Art. 820 and 821, Civil Code,
whereas his credibility depends On the appreciation of his testimony and
arises from the belief and conclusion of the Court that said witness is telling
the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo
Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and
ruled that: "Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says. Trial
courts may allow a person to testify as a witness upon a given matter be-
cause he is competent, but may thereafter decide whether to believe or not
to believe his testimony." In fine, We state the rule that the instrumental wit-
nesses in Order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is worthy of belief and
entitled to credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or that they
are honest and upright or reputed to be trustworthy and reliable, for a person
is presumed to be such unless the contrary is established otherwise. In other
words, the instrumental witnesses must be competent and their testimonies
must be credible before the court allows the probate of the will they have
attested. We, therefore, reject petitioner's position that it was fatal for re-
spondent not to have introduced prior and independent proof of the fact that
the witnesses were "credible witnesses that is, that they have a good stand-
ing in the community and reputed to be trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments
of errors, petitioner disputes the findings of fact of the respondent court in
finding that the preparation and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was not previously furnished with
the names and residence certificates of the witnesses as to enable him to
type such data into the document Exhibit "F", in holding that the fact that the
three typewritten lines under the typewritten words "pangalan" and "tinitira-
han" were left blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion, in holding credible that Isabel Gabriel
could have dictated the will without note or document to Atty. Paraiso, in
holding that Matilde Orobia was physically present when the will was signed
on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses
Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly exe-
cuted, and in holding that the grave contradictions, evasions and misrepre-
sentations of the witnesses (subscribing and notary) presented by the peti-
tioner had been explained away.

Since the above errors are factual We must repeat what We have previously
laid down that the findings of fact of the appellate court are binding and con-
trolling which We cannot review, subject to certain exceptions which We win
consider and discuss hereinafter. We are convinced that the appellate court's
findings are sufficiently justified and supported by the evidence on record.
Thus, the alleged unnaturalness characterizing the trip of the testatrix to the
office of Atty. Paraiso and bringing all the witnesses without previous ap-
pointment for the preparation and execution of the win and that it was coin-
cidental that Atty. Paraiso was available at the moment impugns the finding
of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel
Gabriel and of her companions to his office on April 15, 1961 was unex-
pected as there was no prior appointment with him, but he explained that he
was available for any business transaction on that day and that Isabel Ga-
briel had earlier requested him to help her prepare her will. The finding of the
appellate court is amply based on the testimony of Celso Gimpaya that he
was not only informed on the morning of the day that he witnessed the will
but that it was the third time when Isabel Gabriel told him that he was going
to witness the making of her will, as well as the testimony of Maria Gimpaya
that she was called by her husband Celso Gimpaya to proceed to Isabel
Gabriel's house which was nearby and from said house, they left in a car to
the lawyer's office, which testimonies are recited in the respondent Court's
decision.

The respondent Court further found the following facts: that Celso Gimpaya
and his wife Maria Gimpaya obtained residence certificates a few days be-
fore Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-
5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria
Gimpaya's residence certificate No. A-5114974 was issued also at Navotas,
Rizal on April 14, 1961. The respondent Court correctly observed that there
was nothing surprising in these facts and that the securing of these residence
certificates two days and one day, respectively, before the execution of the
will on April 15, 1961, far from showing an amazing coincidence, reveals that
the spouses were earlier notified that they would be witnesses to the execu-
tion of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to
the office of Atty. Paraiso was planned by the deceased, which conclusion
was correctly drawn from the testimony of the Gimpaya spouses that they
started from the Navotas residence of the deceased with a photographer and
Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house
in Philamlife, Quezon City to fetch her and from there, all the three witnesses
(the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed
for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they
proceeded to Atty. Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previ-
ous to the day that. the will was executed on April 15, 1961, Isabel Gabriel
had requested him to help her in the execution of her will and that he told her
that if she really wanted to execute her will, she should bring with her at least
the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he
(Atty. Paraiso) wanted a medical certificate from a physician notwithstanding
the fact that he believed her to be of sound and disposition mind. From this
evidence, the appellate court rightly concluded, thus: "It is, therefore, clear
that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law office of
Atty. Paraiso was not coincidental as their gathering was pre-arranged by
Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously fur-
nished with the names and residence certificates of the witnesses as to en-
able him to type such data into the document Exhibit ' L which the petitioner
assails as contradictory and irreconcilable with the statement of the Court
that Atty. Paraiso was handed a list (containing the names of the witnesses
and their respective residence certificates) immediately upon their arrival in
the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso
himself who testified that it was only on said occasion that he received such
list from Isabel Gabriel, We cannot agree with petitioner's contention. We find
no contradiction for the, respondent Court held that on the occasion of the
will making on April 15, 1961, the list was given immediately to Atty. Paraiso
and that no such list was given the lawyer in any previous occasion or date
prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and res-
idence certificates of the witnesses on a prior occasion or on the very occa-
sion and date in April 15, 1961 when the will was executed, is of no moment
for such data appear in the notarial acknowledgment of Notary Public Cipri-
ano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occa-
sion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged
by the testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public
and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity.
To contradict all these, there must be evidence that is clear, convincing and
more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We
find no such evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that
the three typewritten lines under the typewritten words "pangalan ' and "tini-
tirahan" were left blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion merits Our approval because tills con-
clusion is supported and borne out by the evidence found by the appellate
court, thus: "On page 5 of Exhibit "F", beneath the typewritten words
"names", "Res. Tax Cert. date issued" and place issued the only name of
Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on Feb-
ruary 24, 1961 at Navotas Rizal appears to be in typewritten form while the
names, residence tax certificate numbers, dates and places of issuance of
said certificates pertaining to the three (3) witnesses were personally hand-
written by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the
sale must be made to close relatives; and the seventh was the appointment
of the appellant Santiago as executrix of the will without bond. The technical
description of the properties in paragraph 5 of Exhibit F was not given and
the numbers of the certificates of title were only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the prop-
erties disposed and the docket number of a special proceeding are indicated
which Atty. Paraiso candidly admitted were supplied by him, whereupon pe-
titioner contends that it was incredible that Isabel Gabriel could have dictated
the will Exhibit "F" without any note or document to Atty. Paraiso, considering
that Isabel Gabriel was an old and sickly woman more than eighty-one years
old and had been suffering from a brain injury caused by two severe blows
at her head and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamen-
tary capacity of the testatrix and is, therefore, beyond Our power to revise
and review, We nevertheless hold that the conclusion reached by the Court
of Appeals that the testatrix dictated her will without any note or memoran-
dum appears to be fully supported by the following facts or evidence appear-
ing on record. Thus, Isabel Gabriel, despite her age, was particularly active
in her business affairs as she actively managed the affairs of the movie busi-
ness ISABELITA Theater, paying the aparatistas herself until June 4, 1961,
3 days before her death. She was the widow of the late Eligio Naval, former
Governor of Rizal Province and acted as coadministratrix in the Intestate
Estate of her deceased husband Eligio Naval. The text of the win was in
Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dic-
tated her will without any note or memorandum, a fact unanimously testified
to by the three attesting witnesses and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence,

both testimonial and documentary is, according to the respondent court,
overwhelming that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two witnesses, Celso
Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is
very clear, thus: "On the contrary, the record is replete with proof that Matilde
Orobia was physically present when the will was signed by Isabel Gabriel on
April '15, 1961 along with her co-witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that Orobia's admission that she gave
piano lessons to the child of the appellant on Wednesdays and Saturdays
and that April 15, 1961 happened to be a Saturday for which reason Orobia
could not have been present to witness the will on that day is purely con-
jectural. Witness Orobia did not admit having given piano lessons to the ap-
pellant's child every Wednesday and Saturday without fail. It is highly prob-
able that even if April 15, 1961 were a Saturday, she gave no piano lessons
on that day for which reason she could have witnessed the execution of the
will. Orobia spoke of occasions when she missed giving piano lessons and
had to make up for the same. Anyway, her presence at the law office of Atty.
Paraiso was in the morning of April 15, 1961 and there was nothing to pre-
clude her from giving piano lessons on the afternoon of the same day in
Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria

Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages
of the will, the documentary evidence which is the will itself, the attestation
clause and the notarial acknowledgment overwhelmingly and convincingly
prove such fact that Matilde Orobia was present on that day of April 15, 1961
and that she witnessed the will by signing her name thereon and acknowl-
edged the same before the notary public, Atty. Cipriano P. Paraiso. The at-
testation clause which Matilde Orobia signed is the best evidence as to the
date of signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very purpose of
the attestation clause which is made for the purpose of preserving in perma-
nent form a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty
they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs.
Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals

in holding that the trial court gave undue importance to the picture-takings
as proof that the win was improperly executed, We agree with the reasoning
of the respondent court that: "Matilde Orobia's Identification of the photogra-
pher as "Cesar Mendoza", contrary to what the other two witnesses (Celso
and Maria Gimpaya) and Atty. Paraiso said that the photographer was Ben-
jamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The
law does not require a photographer for the execution and attestation of the
will. The fact that Miss Orobia mistakenly Identified the photographer as Ce-
sar Mendoza scarcely detracts from her testimony that she was present
when the will was signed because what matters here is not the photographer
but the photograph taken which clearly portrays Matilde Orobia herself, her
co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held:
"The trial court gave undue importance to the picture takings, jumping there-
from to the conclusion that the will was improperly executed. The evidence
however, heavily points to only one occasion of the execution of the will on
April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
Maria Gimpaya. These witnesses were quite emphatic and positive when
they spoke of this occasion. Hence, their Identification of some photographs
wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was
superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-
taking was disclosed at the cross examination of Celso Gimpaya. But this
was explained by Atty. Paraiso as a reenactment of the first incident upon
the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia
was admittedly no longer present was wholly unnecessary if not pointless.
What was important was that the will was duly executed and witnessed on
the first occasion on April 15, 1961 , " and We agree with the Court's ration-
alization in conformity with logic, law and jurisprudence which do not require
picture-taking as one of the legal requisites for the execution or probate of a
will.

Petitioner points to alleged grave contradictions, evasions and misrepresen-

tations of witnesses in their respective testimonies before the trial court. On
the other hand, the respondent Court of Appeals held that said contradic-
tions, evasions and misrepresentations had been explained away. Such dis-
crepancies as in the description of the typewriter used by Atty. Paraiso which
he described as "elite" which to him meant big letters which are of the type
in which the will was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the pho-
tographer by Matilde Orobia to be Cesar Mendoza when actually it was Ben-
jamin Cifra, Jr. these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human memory such
that by themselves would not alter the probative value of their testimonies on
the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for
it cannot be expected that the testimony of every person win be Identical and
coinciding with each other with regard to details of an incident and that wit-
nesses are not expected to remember all details. Human experience teach
us "that contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an evidence
of falsehood constitute a demonstration of good faith. In as much 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." (Lopez vs. Liboro, 81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not
have been disturbed by the respondent appellate court because the trial
court was in a better position to weigh and evaluate the evidence presented
in the course of the trial. As a general rule, petitioner is correct but it is subject
to well-established exceptions. The right of the Court of Appeals to review,
alter and reverse the findings of the trial court where the appellate court, in
reviewing the evidence has found that facts and circumstances of weight and
influence have been ignored and overlooked and the significance of which
have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting ev-
idence whose evaluation hinges on questions of credibility of contending wit-
nesses hes peculiarly within the province of trial courts and generally, the
appellate court should not interfere with the same. In the instant case, how-
ever, the Court of Appeals found that the trial court had overlooked and mis-
interpreted the facts and circumstances established in the record. Whereas
the appellate court said that "Nothing in the record supports the trial court's
unbelief that Isabel Gabriel dictated her will without any note or document to
Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not
have witnessed anybody signing the alleged will or that she could not have
witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she
witnessed only the deceased signing it, is a conclusion based not on facts
but on inferences; that the trial court gave undue importance to the picture-
takings, jumping therefrom to the conclusion that the will was improperly ex-
ecuted and that there is nothing in the entire record to support the conclusion
of the court a quo that the will signing occasion was a mere coincidence and
that Isabel Gabriel made an appointment only with Matilde Orobia to witness
the signing of her will, then it becomes the duty of the appellate court to re-
verse findings of fact of the trial court in the exercise of its appellate jurisdic-
tion over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that
the judgment of the Court of Appeals is conclusive as to the facts and cannot
be reviewed by the Supreme Court. Again We agree with the petitioner that
among the exceptions are: (1) when the conclusion is a finding grounded
entirely on speculations, surmises or conjectures; (2) when the inference is
manifestly mistaken, absurd or impossible; (3) when there is a grave abuse
of discretion; (4) when the presence of each other as required by law. " Spe-
cifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together
with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a pho-
tographer proceeded in a car to the office of Atty. Cipriano Paraiso at the
Bank of P.I. Building, Manila in the morning of that day; that on the way,
Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which
she gave to Atty. Paraiso upon arriving at the latter's office and told the law-
yer that she wanted her will to be made; that Atty. Paraiso asked Isabel Ga-
briel to dictate what she wanted to be written in the will and the attorney wrote
down the dictation of Isabel Gabriel in Tagalog, a language known to and
spoken by her; that Atty. Paraiso read back to her what he wrote as dictated
and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright;
that thereafter, Isabel Gabriel signed her name at the end of the will in the
presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at the end of the attes-
tation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the docu-
ment in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at
the bottom of the attestation clause and at the left-hand margin of the other
pages of the document in the presence of Isabel Gabriel, Matilde Orobia and
Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the
foot of the attestation clause and at the left-hand margin of every page in the
presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that there-
after, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of
1961, in his Notarial Register. On the occasion of the execution and attesta-
tion of the will, a photographer took pictures, one Exhibit "G", depicting Ma-
tilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and
Atty. Paraiso, taken on said occasion of the signing of the will, and another,
Exhibit "H", showing Matilde Orobia signing testimony that he had earlier ad-
vised Isabel Gabriel to bring with her at least the Mayor and a Councilor of
Navotas, Rizal to be her witnesses for he did not know beforehand the Iden-
tities of the three attesting witnesses until the latter showed up at his law
office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was
not controverted that he wrote down in his own hand the date appearing on
page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and
ratified the will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was cred-
ible that Isabel Gabriel could have dictated the will, Exhibit "F", without any
note or document to Atty. Paraiso as against the contention of petitioner that
it was incredible. This ruling of the respondent court is fully supported by the
evidence on record as stated in the decision under review, thus: "Nothing in
the record supports the trial court's unbelief that Isabel Gabriel dictated her
will without any note or document to Atty. Paraiso. On the contrary, all the
three attesting witnesses uniformly testified that Isabel Gabriel dictated her
will to Atty. Paraiso and that other than the piece of paper that she handed
to said lawyer she had no note or document. This fact jibes with the evidence
which the trial court itself believed was unshaken that Isabel Gabriel
was of sound disposing memory when she executed her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but
quite simple. The first was Isabel Gabriel's wish to be interred according to
Catholic rites the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of
her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel
and the amount for each legatee the fifth was the institution of the petitioner-
appellant, Lutgarda Santiago as the principal heir mentioning in general
terms seven (7) types of properties; the sixth disposed of the remainder of
her estate which she willed in favor of appellant Lutgarda Santiago but pro-
hibiting the sale of such properties to anyone except in extreme situations in
which judgment is based on a misapprehension of facts; (5) when the find-
ings of fact are conflicting, (6) when the Court of Appeals, in making its find-
ings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No.
L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-
22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept.
14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not
fall within any of the exceptions enumerated above. We likewise hold that
the findings of fact of the respondent appellate court are fully supported by
the evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehen-
sion of facts. The respondent Court's findings of fact are not conflicting.
Hence, the well-established rule that the decision of the Court of Appeals
and its findings of fact are binding and conclusive and should not be dis-
turbed by this Tribunal and it must be applied in the case at bar in its full force
and effect, without qualification or reservation. The above holding simply
synthesize the resolutions we have heretofore made in respect ' to petition-
er's previous assignments of error and to which We have disagreed and,
therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by

Us as We find the respondent Court acted properly and correctly and has
not departed from the accepted and usual course of judicial proceedings as
to call for the exercise of the power of supervision by the Supreme Court,
and as We find that the Court of Appeals did not err in reversing the decision
of the trial court and admitting to probate Exhibit "F", the last will and testa-
ment of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and
evaluation of the evidence on record is unassailable that: "From the welter
of evidence presented, we are convinced that the will in question was exe-
cuted on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya
and Maria Gimpaya signing and witnessing the same in the the will on a table
with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the
table. Atty. Paraiso, after finishing the notarial act, then delivered the original
to Isabel Gabriel and retained the other copies for his file and notarial regis-
ter. A few days following the signing of the will, Isabel Gabriel, Celso
Gimpaya and another photographer arrived at the office of Atty. Paraiso and
told the lawyer that she wanted another picture taken because the first pic-
ture did not turn out good. The lawyer told her that this cannot be done be-
cause the will was already signed but Isabel Gabriel insisted that a picture
be taken, so a simulated signing was performed during which incident Ma-
tilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testi-

monies of the witnesses for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the three instru-
mental witnesses who constitute the best evidence of the will making have
testified in favor of the probate of the will. So has the lawyer who prepared
it, one learned in the law and long in the practice thereof, who thereafter
notarized it. All of them are disinterested witnesses who stand to receive no
benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by
anyone, much less the petitioner, that they were not genuine. In the last and
final analysis, the herein conflict is factual and we go back to the rule that the
Supreme Court cannot review and revise the findings of facts of the respond-
ent Court of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed

from is hereby AFFIRMED, with costs against the petitioner.

MANUEL L. LEE, A.C. No. 5281

Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-
DE CASTRO, JJ.
ATTY. REGINO B. TAMBAGO,
Respondent. Promulgated:
February 12, 2008
x------------------------------------------
- - - - - - - - -x

RESOLUTION
CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant

Manuel L. Lee charged respondent Atty. Regino B. Tambago

with violation of the Notarial Law and the ethics of the legal

profession for notarizing a spurious last will and testament.

In his complaint, complainant averred that his father, the

decedent Vicente Lee, Sr., never executed the contested will.

Furthermore, the spurious will contained the forged signatures

of Cayetano Noynay and Loreto Grajo, the purported witnesses

to its execution.
 In the said will, the decedent supposedly bequeathed his

entire estate to his wife Lim Hock Lee, save for a parcel of land

which he devised to Vicente Lee, Jr. and Elena Lee, half-sib-

lings of complainant.

The will was purportedly executed and acknowledged be-

fore respondent on June 30, 1965.[1] Complainant, however,

pointed out that the residence certificate[2] of the testator noted

in the acknowledgment of the will was dated January 5,

1962.[3] Furthermore, the signature of the testator was not the

same as his signature as donor in a deed of donation[4] (contain-

ing his purported genuine signature). Complainant averred that

the signatures of his deceased father in the will and in the deed

of donation were in any way (sic) entirely and diametrically op-

posed from (sic) one another in all angle[s].[5]

Complainant also questioned the absence of notation of

the residence certificates of the purported witnesses Noynay and

Grajo. He alleged that their signatures had likewise been forged

and merely copied from their respective voters affidavits.

Complainant further asserted that no copy of such pur-

ported will was on file in the archives division of the Records

Management and Archives Office of the National Commission

for Culture and the Arts (NCCA). In this connection, the certi-

fication of the chief of the archives division dated September

19, 1999 stated:

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Respondent in his comment dated July 6, 2001 claimed

that the complaint against him contained false allegations: (1)

that complainant was a son of the decedent Vicente Lee, Sr. and

(2) that the will in question was fake and spurious. He alleged
that complainant was not a legitimate son of Vicente Lee, Sr.

and the last will and testament was validly executed and actually

notarized by respondent per affidavit[7] of Gloria Nebato, com-

mon-law wife of Vicente Lee, Sr. and corroborated by the joint

affidavit[8] of the children of Vicente Lee, Sr., namely Elena N.

Lee and Vicente N. Lee, Jr. xxx.[9]

Respondent further stated that the complaint was filed

simply to harass him because the criminal case filed by com-

plainant against him in the Office of the Ombudsman did not

prosper.

Respondent did not dispute complainants contention that

no copy of the will was on file in the archives division of the

NCCA. He claimed that no copy of the contested will could be

found there because none was filed.

 Lastly, respondent pointed out that complainant had no

valid cause of action against him as he (complainant) did not

first file an action for the declaration of nullity of the will and

demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred

the case to the Integrated Bar of the Philippines (IBP) for inves-

tigation, report and recommendation.[10]

In his report, the investigating commissioner found respondent

guilty of violation of pertinent provisions of the old Notarial

Law as found in the Revised Administrative Code. The viola-

tion constituted an infringement of legal ethics, particularly

Canon 1[11] and Rule 1.01[12] of the Code of Professional Re-

sponsibility (CPR).[13] Thus, the investigating commissioner of

the IBP Commission on Bar Discipline recommended the sus-

pension of respondent for a period of three months.

 The IBP Board of Governors, in its Resolution No. XVII-

2006-285 dated May 26, 2006, resolved:

[
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c
a
s
e
,
h
e
r
e
i
n
m
a
d
e
p
a
r
t
o
f
t
h
i
s
R
e
s
o
l
u
t
i
o
n
a
s
A
n
n
e
x
A
;
a
n
d
,
f
i
n
d
i
n
g
t
h
e
r
e
c
o
m
m
e
n
d
a
t
i
o
n
f
u
l
l
y
s
u
p
p
o
r
t
e
d
b
y
t
h
e
e
v
i
d
e
n
c
e
o
n
r
e
c
o
r
d
a
n
d
t
h
e
a
p
p
l
i
c
a
b
l
e
l
a
w
s
a
n
d
r
u
l
e
s
,
a
n
d
c
o
n
s
i
d
e
r
i
n
g
R
e
s
p
o
n
d
e
n
t
s
f
a
i
l
u
r
e
t
o
c
o
m
p
l
y
w
i
t
h
t
h
e
l
a
w
s
i
n
t
h
e
d
i
s
c
h
a
r
g
e
o
f
h
i
s
f
u
n
c
t
i
o
n
a
s
a
n
o
t
a
r
y
p
u
b
l
i
c
,
A
t
t
y
.
R
e
g
i
n
o
B
.
T
a
m
b
a
g
o
i
s
h
e
r
e
b
y
s
u
s
p
e
n
d
e
d
f
r
o
m
t
h
e
p
r
a
c
t
i
c
e
o
f
l
a
w
f
o
r
o
n
e
y
e
a
r
a
n
d
R
e
s
p
o
n
d
e
n
t
s
n
o
t
a
r
i
a
l
c
o
m
m
i
s
s
i
o
n
i
s

R
e
v
o
k
e
d
a
n
d
D
i
s
q
u
a
l
i
f
i
e
d

f
r
o
m

r
e
a
p
p
o
i
n
t
m
e
n
t
a
s
N
o
t
a
r
y
P
u
b
l
i
c
f
o
r
t
w
o
(
2
)
y
e
a
r
s
.
[
1
4
]
 We affirm with modification.

A will is an act whereby a person is permitted, with the

formalities prescribed by law, to control to a certain degree the

disposition of his estate, to take effect after his death.[15] A will

may either be notarial or holographic.

The law provides for certain formalities that must be fol-

lowed in the execution of wills. The object of solemnities sur-

rounding the execution of wills is to close the door on bad faith

and fraud, to avoid substitution of wills and testaments and to

guarantee their truth and authenticity.[16]

A notarial will, as the contested will in this case, is re-

quired by law to be subscribed at the end thereof by the testator

himself. In addition, it should be attested and subscribed by

three or more credible witnesses in the presence of the testator

and of one another.[17]

The will in question was attested by only two witnesses,

Noynay and Grajo. On this circumstance alone, the will must be

considered void.[18] This is in consonance with the rule that acts

executed against the provisions of mandatory or prohibitory

laws shall be void, except when the law itself authorizes their

validity.

The Civil Code likewise requires that a will must be

acknowledged before a notary public by the testator and the wit-

nesses.[19] The importance of this requirement is highlighted by

the fact that it was segregated from the other requirements under

Article 805 and embodied in a distinct and separate provi-

sion.[20]
 An acknowledgment is the act of one who has executed a

deed in going before some competent officer or court and de-

claring it to be his act or deed. It involves an extra step under-

taken whereby the signatory actually declares to the notary pub-

lic that the same is his or her own free act and deed.[21] The ac-

knowledgment in a notarial will has a two-fold purpose: (1) to

safeguard the testators wishes long after his demise and (2) to

assure that his estate is administered in the manner that he in-

tends it to be done.

A cursory examination of the acknowledgment of the will

in question shows that this particular requirement was neither

strictly nor substantially complied with. For one, there was the

conspicuous absence of a notation of the residence certificates

of the notarial witnesses Noynay and Grajo in the acknowledg-

ment. Similarly, the notation of the testators old residence cer-

tificate in the same acknowledgment was a clear breach of the

law. These omissions by respondent invalidated the will.

As the acknowledging officer of the contested will, re-

spondent was required to faithfully observe the formalities of a

will and those of notarization. As we held in Santiago v.

Rafanan:[22]
T
h
e
N
o
t
a
r
i
a
l
L
a
w
i
s
e
x
p
l
i
c
i
t
o
n
t
h
e
o
b
l
i
g
a
t
i
o
n
s
a
n
d
d
u
t
i
e
s
o
f
n
o
t
a
r
i
e
s
p
u
b
l
i
c
.
T
h
e
y
a
r
e
r
e
q
u
i
r
e
d
t
o
c
e
r
t
i
f
y
t
h
a
t
t
h
e
p
a
r
t
y
t
o
e
v
e
r
y
d
o
c
u
m
e
n
t
a
c
k
n
o
w
l
e
d
g
e
d
b
e
f
o
r
e
h
i
m
h
a
d
p
r
e
s
e
n
t
e
d
t
h
e
p
r
o
p
e
r
r
e
s
i
d
e
n
c
e
c
e
r
t
i
f
i
c
a
t
e
(
o
r
e
x
e
m
p
t
i
o
n
f
r
o
m
t
h
e
r
e
s
i
d
e
n
c
e
t
a
x
)
;
a
n
d
t
o
e
n
t
e
r
i
t
s
n
u
m
b
e
r
,
p
l
a
c
e
o
f
i
s
s
u
e
a
n
d
d
a
t
e
a
s
p
a
r
t
o
f
s
u
c
h
c
e
r
t
i
f
i
c
a
t
i
o
n
.
 These formalities are mandatory and cannot be disre-

garded, considering the degree of importance and evidentiary

weight attached to notarized documents.[23] A notary public, es-

pecially a lawyer,[24] is bound to strictly observe these elemen-

tary requirements.

The Notarial Law then in force required the exhibition of

the residence certificate upon notarization of a document or in-

strument:

S
e
c
t
i
o
n
2
5
1
.
R
e
q
u
i
r
e
m
e
n
t
a
s
t
o
n
o
t
a
t
i
o
n
o
f
p
a
y
m
e
n
t
o
f
[
c
e
d
u
l
a
]
r
e
s
i
d
e
n
c
e
t
a
x
.
E
v
e
r
y
c
o
n
t
r
a
c
t
,
d
e
e
d
,
o
r
o
t
h
e
r
d
o
c
u
m
e
n
t
a
c
k
n
o
w
l
e
d
g
e
d
b
e
f
o
r
e
a
n
o
t
a
r
y
p
u
b
l
i
c
s
h
a
l
l
h
a
v
e
c
e
r
t
i
f
i
e
d
t
h
e
r
e
o
n
t
h
a
t
t
h
e
p
a
r
t
i
e
s
t
h
e
r
e
t
o
h
a
v
e
p
r
e
s
e
n
t
e
d
t
h
e
i
r
p
r
o
p
e
r
[
c
e
d
u
l
a
]
r
e
s
i
d
e
n
c
e
c
e
r
t
i
f
i
c
a
t
e
o
r
a
r
e
e
x
e
m
p
t
f
r
o
m
t
h
e
[
c
e
d
u
l
a
]
r
e
s
i
d
e
n
c
e
t
a
x
,
a
n
d
t
h
e
r
e
s
h
a
l
l
b
e
e
n
t
e
r
e
d
b
y
t
h
e
n
o
t
a
r
y
p
u
b
l
i
c
a
s
a
p
a
r
t
o
f
s
u
c
h
c
e
r
t
i
f
i
c
a
t
e
t
h
e
n
u
m
b
e
r
,
p
l
a
c
e
o
f
i
s
s
u
e
,
a
n
d
d
a
t
e
o
f
e
a
c
h
[
c
e
d
u
l
a
]
r
e
s
i
d
e
n
c
e
c
e
r
t
i
f
i
c
a
t
e
a
s
a
f
o
r
 e
s
a
i
d
.
[
2
5
]

The importance of such act was further reiterated by Sec-

tion 6 of the Residence Tax Act[26] which stated:

W
h
e
n
a
p
e
r
s
o
n
l
i
a
b
l
e
t
o
t
h
e
t
a
x
e
s
p
r
e
s
c
r
i
b
e
d
i
n
t
h
i
s
A
c
t
a
c
k
n
o
w
l
e
d
g
e
s
a
n
y
d
o
c
u
m
e
n
t
b
e
f
o
r
e
a
n
o
t
a
r
y
p
u
b
l
i
c
x
x
x
i
t
s
h
a
l
l
b
e
t
h
e
d
u
t
y
o
f
s
u
c
h
p
e
r
s
o
n
x
x
x
w
i
t
h
w
h
o
m
s
u
c
h
t
r
a
n
s
a
c
t
i
o
n
i
s
h
a
d
o
r
b
u
s
i
n
e
s
s
d
o
n
e
,
t
o
r
e
q
u
i
r
e
t
h
e
e
x
h
i
b
i
t
i
o
n
o
f
t
h
e
r
e
s
i
d
e
n
c
e
c
e
r
t
i
f
i
c
a
t
e
s
h
o
w
i
n
g
p
a
y
m
e
n
t
o
f
t
h
e
r
e
s
i
d
e
n
c
e
t
a
x
e
s
b
y
s
u
c
h
p
e
r
s
o
n
x
x
x
.
 In the issuance of a residence certificate, the law seeks to

establish the true and correct identity of the person to whom it

is issued, as well as the payment of residence taxes for the cur-

rent year. By having allowed decedent to exhibit an expired res-

idence certificate, respondent failed to comply with the require-

ments of both the old Notarial Law and the Residence Tax Act.

As much could be said of his failure to demand the exhibition

of the residence certificates of Noynay and Grajo.

On the issue of whether respondent was under the legal

obligation to furnish a copy of the notarized will to the archives

division, Article 806 provides:

A
r
t
.
8
0
6
.
E
v
e
r
y
w
i
l
l
m
u
s
t
b
e
a
c
k
n
o
w
l
e
d
g
e
d
b
e
f
o
r
e
a
n
o
t
a
r
y
p
u
b
l
i
c
b
y
t
h
e
t
e
s
t
a
t
o
r
a
n
d
t
h
e
w
i
t
n
e
s
s
.

T
h
e
n
o
t
a
r
y
p
u
b
l
i
c
s
h
a
l
l
n
o
t
b
e
r
e
q
u
i
r
e
d
t
o
r
e
t
a
i
n
a
c
o
p
y
o
f
t
h
e
w
i
l
l
,
o
r
f
i
l
e
a
n
o
t
h
e
r
w
i
t
h
t
h
e
o
f
f
i
c
e
o
f
t
h
e
C
l
e
r
k
o
f
C
o
u
r
 t
.

(
e
m
p
h
a
s
i
s
s
u
p
p
l
i
e
d
)

Respondents failure, inadvertent or not, to file in the archives

division a copy of the notarized will was therefore not a cause

for disciplinary action.

Nevertheless, respondent should be faulted for having

failed to make the necessary entries pertaining to the will in his

notarial register. The old Notarial Law required the entry of the
following matters in the notarial register, in chronological or-

der:

1
.

n
a
t
u
r
e
o
f
e
a
c
h
i
n
s
t
r
u
m
e
n
t
e
x
e
c
u
t
 e
d
,
s
w
o
r
n
t
o
,
o
r
a
c
k
n
o
w
l
e
d
g
e
d
b
e
f
o
r
e
h
i
m
;
2
.
p
e
r
s
o
n
e
x
e
c
u
t
i
n
g
,
s
w
e
a
r
i
n
g
t
o
,
o
r
a
c
k
n
o
w
l
e
d
g
i
n
g
t
 h
e
i
n
s
t
r
u
m
e
n
t
;
3
.

w
i
t
n
e
s
s
e
s
,
i
f
a
n
y
,
t
o
t
h
e
s
 i
g
n
a
t
u
r
e
;
4
.

d
a
t
e
o
f
e
x
e
c
u
t
i
o
n
,
o
a
t
h
,
o
r
a
c
k
 n
o
w
l
e
d
g
m
e
n
t
o
f
t
h
e
i
n
s
t
r
u
m
e
n
t
;
5
.

f
e
e
s
c
o
l
l
 e
c
t
e
d
b
y
h
i
m
f
o
r
h
i
s
s
e
r
v
i
c
e
s
a
s
n
o
t
a
r
y
;
6
.

g
i
 v
e
e
a
c
h
e
n
t
r
y
a
c
o
n
s
e
c
u
t
i
v
e
n
u
m
b
e
r
;
a
n
d
7
.

i
f
t
h
e
i
n
s
t
r
u
m
e
n
t
i
s
a
c
o
n
t
r
a
c
t
,
a
b
r
i
e
f
d
e
s
c
r
i
p
t
i
o
n
o
 f
t
h
e
s
u
b
s
t
a
n
c
e
o
f
t
h
e
i
n
s
t
r
u
m
e
n
t
.
[
2
7
]

In an effort to prove that he had complied with the above-

mentioned rule, respondent contended that he had crossed out a

prior entry and entered instead the will of the decedent. As

proof, he presented a photocopy of his notarial register. To re-

inforce his claim, he presented a photocopy of a certifica-

tion[28] stating that the archives division had no copy of the affi-

davit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not ad-

missible unless it is shown that the original is unavailable. The

proponent must first prove the existence and cause of the una-

vailability of the original,[29] otherwise, the evidence presented

will not be admitted. Thus, the photocopy of respondents notar-

ial register was not admissible as evidence of the entry of the

execution of the will because it failed to comply with the re-

quirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the

certification dated September 21, 1999[30] must fail. Not only

did he present a mere photocopy of the certification dated

March 15, 2000;[31] its contents did not squarely prove the fact

of entry of the contested will in his notarial register.

Notaries public must observe with utmost care[32] and ut-

most fidelity the basic requirements in the performance of their

duties, otherwise, the confidence of the public in the integrity of

notarized deeds will be undermined.[33]

Defects in the observance of the solemnities prescribed

by law render the entire will invalid. This carelessness cannot

be taken lightly in view of the importance and delicate nature of

a will, considering that the testator and the witnesses, as in this

case, are no longer alive to identify the instrument and to con-

firm its contents.[34] Accordingly, respondent must be held ac-

countable for his acts. The validity of the will was seriously

compromised as a consequence of his breach of duty.[35]

 In this connection, Section 249 of the old Notarial Law

provided:
G
r
o
u
n
d
s
f
o
r
r
e
v
o
c
a
t
i
o
n
o
f
c
o
m
m
i
s
s
i
o
n
.
T
h
e
f
o
l
l
o
w
i
n
g
d
e
r
e
l
i
c
t
i
o
n
s
o
f
d
u
t
y
o
n
t
h
e
p
a
r
t
o
f
a
n
o
t
a
r
y
p
u
b
l
i
c
s
h
a
l
l
,
i
n
t
h
e
d
i
s
c
r
e
t
i
o
n
o
f
t
h
e
p
r
o
p
e
r
j
u
d
g
e
o
f
f
i
r
s
t
i
n
s
t
a
n
c
e
,
b
e
s
u
f
f
i
c
i
e
n
t
g
r
o
u
n
d
f
o
r
t
h
e
r
e
v
o
c
a
t
i
o
n
o
f
h
i
s
c
o
m
m
i
s
s
i
o
n
:

x
x
x

x
x
x

x
x
x

(
b
)

T
h
e
f
a
i
l
u
r
e
o
f
t
h
e
n
o
t
a
r
y
t
o
m
a
k
e
t
h
e
p
r
o
p
e
r
e
n
t
r
y
o
r
e
n
t
r
i
e
s
i
n
h
i
s
n
o
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 These gross violations of the law also made respondent

liable for violation of his oath as a lawyer and constituted trans-

gressions of Section 20 (a), Rule 138 of the Rules of

Court[37]and Canon 1[38] and Rule 1.01[39] of the CPR.

The first and foremost duty of a lawyer is to maintain al-

legiance to the Republic of the Philippines, uphold the Consti-

tution and obey the laws of the land.[40] For a lawyer is the serv-

ant of the law and belongs to a profession to which society has

entrusted the administration of law and the dispensation of jus-

tice.[41]

While the duty to uphold the Constitution and obey the

law is an obligation imposed on every citizen, a lawyer assumes

responsibilities well beyond the basic requirements of good cit-

izenship. As a servant of the law, a lawyer should moreover

make himself an example for others to emulate.[42] Being a law-

yer, he is supposed to be a model in the community in so far as

respect for the law is concerned.[43]

The practice of law is a privilege burdened with condi-

tions.[44] A breach of these conditions justifies disciplinary ac-

tion against the erring lawyer. A disciplinary sanction is im-

posed on a lawyer upon a finding or acknowledgment that he

has engaged in professional misconduct.[45] These sanctions

meted out to errant lawyers include disbarment, suspension and

reprimand.

Disbarment is the most severe form of disciplinary sanc-

tion.[46] We have held in a number of cases that the power to

disbar must be exercised with great caution[47] and should not

be decreed if any punishment less severe such as reprimand,

suspension, or fine will accomplish the end desired.[48] The rule

then is that disbarment is meted out only in clear cases of mis-

conduct that seriously affect the standing and character of the

lawyer as an officer of the court.[49]

Respondent, as notary public, evidently failed in the per-

formance of the elementary duties of his office. Contrary to his

claims that he exercised his duties as Notary Public with due

care and with due regard to the provision of existing law and

had complied with the elementary formalities in the perfor-

mance of his duties xxx, we find that he acted very irresponsibly

in notarizing the will in question. Such recklessness warrants

the less severe punishment of suspension from the practice of

law. It is, as well, a sufficient basis for the revocation of his

commission[50] and his perpetual disqualification to be commis-

sioned as a notary public.[51]

 WHEREFORE, respondent Atty. Regino B. Tambago is

hereby found guilty of professional misconduct. He violated (1)

the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon

1 and Rule 1.01 of the Code of Professional Responsibility; (4)

Art. 806 of the Civil Code and (5) the provisions of the old No-

tarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from

the practice of law for one year and his notarial commis-

sion REVOKED. Because he has not lived up to the trustwor-

thiness expected of him as a notary public and as an officer of

the court, he is PERPETUALLY DISQUALIFIED from re-

appointment as a notary public.

Let copies of this Resolution be furnished to all the courts

of the land, the Integrated Bar of the Philippines and the Office

of the Bar Confidant, as well as made part of the personal rec-

ords of respondent.
This is a petition for review under Rule 45 of the 1997 Rules of Civil Proce-
dure seeking to reverse the Decision1dated October 13, 2000 of the Court of
Appeals in CA-G.R. CV No. 41756, which affirmed the Decision2 dated
March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati City.
The RTC had declared the last will and testament of Margarita S. Mayores
probated and designated respondent Lucia D. Abena as the executor of her
will. It also ordered the issuance of letters testamentary in favor of respond-
ent.

The facts are as follows:

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita

S. Mayores (Margarita) while respondent was the decedents lifelong com-
panion since 1929.

On April 27, 1987, Margarita died single and without any ascending nor de-
scending heirs as her parents, grandparents and siblings predeceased her.
She was survived by her first cousins Catalina Samaniego-Bombay, Ma-
nuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.

Before her death, Margarita executed a Last Will and Testament3 on Febru-
ary 2, 1987 where she bequeathed one-half of her undivided share of a real
property located at Singalong Manila, consisting of 209.8 square meters, and
covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma
A. Pahingalo, and Florentino M. Abena in equal shares or one-third portion
each. She likewise bequeathed one-half of her undivided share of a real
property located at San Antonio Village, Makati, consisting of 225 square
meters, and covered by TCT No. 68920 to respondent, Isabelo M. Abena,
and Amanda M. Abena in equal shares or one-third portion each. Margarita
also left all her personal properties to respondent whom she likewise desig-
nated as sole executor of her will.

On August 11, 1987, petitioner filed a petition for letters of administration of

the estate of Margarita before the RTC of Makati. The case was docketed as
SP Proc. No. M-1531.

On October 27, 1987, respondent filed a petition for probate of the will of
Margarita before the RTC of Makati. The case was docketed as SP Proc.
No. M-1607 and consolidated with SP Proc. No. M-1531.

On March 2, 1993, the RTC rendered a decision declaring the last will and
testament of Margarita probated and respondent as the executor of the will.
The dispositive portion of the decision states:

In view of the foregoing, judgment is hereby rendered:

1) declaring the will as probated;

2) declaring Lucia Abena as the executor of the will who will serve as such
without a bond as stated in paragraph VI of the probated will;

3) ordering the issuance of letters testamentary in favor of Lucia Abena.

So ordered.4

Petitioner appealed the RTC decision to the Court of Appeals. But the Court
of Appeals, in a decision dated October 13, 2000, affirmed in toto the RTC
ruling. The dispositive portion of the Court of Appeals decision states:

WHEREFORE, foregoing premises considered, the appeal having no merit

in fact and in law, is hereby ORDERED DISMISSED and the appealed De-
cision of the trial court AFFIRMED IN TOTO, with cost to oppositors-appel-
lants.

SO ORDERED.5

Hence, the instant petition citing the following issues:

I.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A RE-

VERSIBLE ERROR IN NOT INVALIDATING THE WILL SINCE IT DID NOT
CONFORM TO THE FORMALITIES REQUIRED BY LAW;

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN

NOT INVALIDATING THE WILL BECAUSE IT WAS PROCURED
THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND

III.

WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN

NOT DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE
LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING LET-
TERS OF ADMINISTRATION TO HER.6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not
declaring the will invalid for failure to comply with the formalities required by
law, (2) whether said court erred in not declaring the will invalid because it
was procured through undue influence and pressure, and (3) whether it erred
in not declaring petitioner and her siblings as the legal heirs of Margarita,
and in not issuing letters of administration to petitioner.

Petitioner, in her Memorandum,7 argues that Margaritas will failed to comply

with the formalities required under Article 8058 of the Civil Code because the
will was not signed by the testator in the presence of the instrumental wit-
nesses and in the presence of one another. She also argues that the signa-
tures of the testator on pages A, B, and C of the will are not the same or
similar, indicating that they were not signed on the same day. She further
argues that the will was procured through undue influence and pressure be-
cause at the time of execution of the will, Margarita was weak, sickly, jobless
and entirely dependent upon respondent and her nephews for support, and
these alleged handicaps allegedly affected her freedom and willpower to de-
cide on her own. Petitioner thus concludes that Margaritas total dependence
on respondent and her nephews compelled her to sign the will. Petitioner
likewise argues that the Court of Appeals should have declared her and her
siblings as the legal heirs of Margarita since they are her only living collateral
relatives in accordance with Articles 10099 and 101010 of the Civil Code.

Respondent, for her part, argues in her Memorandum11 that the petition for
review raises questions of fact, not of law and as a rule, findings of fact of
the Court of Appeals are final and conclusive and cannot be reviewed on
appeal to the Supreme Court. She also points out that although the Court of
Appeals at the outset opined there was no compelling reason to review the
petition, the Court of Appeals proceeded to tackle the assigned errors and
rule that the will was validly executed, sustaining the findings of the trial court
that the formalities required by law were duly complied with. The Court of
Appeals also concurred with the findings of the trial court that the testator,
Margarita, was of sound mind when she executed the will.

After careful consideration of the parties contentions, we rule in favor of re-

spondent.

We find that the issues raised by petitioner concern pure questions of fact,
which may not be the subject of a petition for review on certiorari under Rule
45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was
signed by the testator in the presence of the witnesses and of one another,
whether or not the signatures of the witnesses on the pages of the will were
signed on the same day, and whether or not undue influence was exerted
upon the testator which compelled her to sign the will, are all questions of
fact.

This Court does not resolve questions of fact in a petition for review under
Rule 45 of the 1997 Rules of Civil Procedure. Section 112 of Rule 45 limits
this Courts review to questions of law only.

Well-settled is the rule that the Supreme Court is not a trier of facts. When
supported by substantial evidence, the findings of fact of the Court of Ap-
peals are conclusive and binding on the parties and are not reviewable by
this Court, unless the case falls under any of the following recognized excep-
tions:

(1) When the conclusion is a finding grounded entirely on speculation, sur-

mises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the is-
sues of the case and the same is contrary to the admissions of both appellant
and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evi-
dence on which they are based;

(9) When the facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondents; and
(10) When the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on rec-
ord.13

We find that this case does not involve any of the abovementioned excep-
tions.

Nonetheless, a review of the findings of the RTC as upheld by the Court of

Appeals, reveal that petitioners arguments lack basis. The RTC correctly
held:

With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et

al.] that the testator [Margarita Mayores] was not mentally capable of making
a will at the time of the execution thereof, the same is without merit. The
oppositors failed to establish, by preponderance of evidence, said allegation
and contradict the presumption that the testator was of sound mind (See
Article 800 of the Civil Code). In fact, witness for the oppositors, Dr. Ramon
Lamberte, who, in some occasions, attended to the testator months before
her death, testified that Margarita Mayores could engage in a normal con-
versation and he even stated that the illness of the testator does not warrant
hospitalization. Not one of the oppositors witnesses has mentioned any
instance that they observed act/s of the testator during her lifetime that could
be construed as a manifestation of mental incapacity. The testator may be
admitted to be physically weak but it does not necessarily follow that she was
not of sound mind. [The] testimonies of contestant witnesses are pure afore-
thought.

Anent the contestants submission that the will is fatally defective for the rea-
son that its attestation clause states that the will is composed of three (3)
pages while in truth and in fact, the will consists of two (2) pages only be-
cause the attestation is not a part of the notarial will, the same is not accu-
rate. While it is true that the attestation clause is not a part of the will, the
court, after examining the totality of the will, is of the considered opinion that
error in the number of pages of the will as stated in the attestation clause is
not material to invalidate the subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B, and C which is a suffi-
cient safeguard from the possibility of an omission of some of the pages. The
error must have been brought about by the honest belief that the will is the
whole instrument consisting of three (3) pages inclusive of the attestation
clause and the acknowledgement. The position of the court is in consonance
with the "doctrine of liberal interpretation" enunciated in Article 809 of the
Civil Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and] improper
pressure and influence, defects and imperfections in the form of attes-
tation or in the language used therein shall not render the will invalid if
it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805."

The court also rejects the contention of the oppositors that the signatures of
the testator were affixed on different occasions based on their observation
that the signature on the first page is allegedly different in size, texture and
appearance as compared with the signatures in the succeeding pages. After
examination of the signatures, the court does not share the same observa-
tion as the oppositors. The picture (Exhibit "H-3") shows that the testator was
affixing her signature in the presence of the instrumental witnesses and the
notary. There is no evidence to show that the first signature was procured
earlier than February 2, 1987.

Finally, the court finds that no pressure nor undue influence was exerted on
the testator to execute the subject will. In fact, the picture reveals that the
testator was in a good mood and smiling with the other witnesses while ex-
ecuting the subject will (See Exhibit "H").

In fine, the court finds that the testator was mentally capable of making the
will at the time of its execution, that the notarial will presented to the court is
the same notarial will that was executed and that all the formal requirements
(See Article 805 of the Civil Code) in the execution of a will have been sub-
stantially complied with in the subject notarial will.14 (Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned findings of the RTC.

Since, petitioner and her siblings are not compulsory heirs of the decedent
under Article 88715 of the Civil Code and as the decedent validly disposed of
her properties in a will duly executed and probated, petitioner has no legal
right to claim any part of the decedents estate.

WHEREFORE, the petition is DENIED. The assailed Decision dated October

13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756 is AFFIRMED.

Costs against petitioner.

 FIRST DIVISION
[ G.R. NO. 174144, April 17, 2007 ]
BELLA A. GUERRERO, PETITIONER, VS.
RESURRECCION A. BIHIS, RESPONDENT.

DECISION
CORONA, J.:
The Scriptures tell the story of the brothers Jacob and
Esau[1], siblings who fought bitterly over the inheritance
of their father Isaac's estate. Jurisprudence is also replete
with cases involving acrimonious conflicts between broth-
ers and sisters over successional rights. This case is no ex-
ception.

On February 19, 1994, Felisa Tamio de Buenaventura,

mother of petitioner Bella A. Guerrero and respondent
Resurreccion A. Bihis, died at the Metropolitan Hospital
in Tondo, Manila.

On May 24, 1994, petitioner filed a petition for the probate

of the last will and testament of the decedent in Branch
95[2] of the Regional Trial Court of Quezon City where the
case was docketed as Sp. Proc. No. Q-94-20661.

The petition alleged the following: petitioner was named

as executrix in the decedent's will and she was legally
qualified to act as such; the decedent was a citizen of the
Philippines at the time of her death; at the time of the ex-
ecution of the will, the testatrix was 79 years old, of sound
and disposing mind, not acting under duress, fraud or un-
due influence and was capacitated to dispose of her estate
by will.

Respondent opposed her elder sister's petition on the fol-

lowing grounds: the will was not executed and attested as
required by law; its attestation clause and acknowledg-
ment did not comply with the requirements of the law; the
signature of the testatrix was procured by fraud and peti-
tioner and her children procured the will through undue
and improper pressure and influence.
In an order dated November 9, 1994, the trial court ap-
pointed petitioner as special administratrix of the dece-
dent's estate. Respondent opposed petitioner's appoint-
ment but subsequently withdrew her opposition. Peti-
tioner took her oath as temporary special administratrix
and letters of special administration were issued to her.

On January 17, 2000, after petitioner presented her evi-

dence, respondent filed a demurrer thereto alleging that
petitioner's evidence failed to establish that the decedent's
will complied with Articles 804 and 805 of the Civil Code.

In a resolution dated July 6, 2001, the trial court denied

the probate of the will ruling that Article 806 of the Civil
Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the
testatrix's, residence at No. 40 Kanlaon Street, Quezon
City before Atty. Macario O. Directo who was a commis-
sioned notary public for and in Caloocan City. The dispos-
itive portion of the resolution read:
WHEREFORE, in view of the foregoing, the Court finds,
and so declares that it cannot admit the last will and tes-
tament of the late Felisa Tamio de Buenaventura to pro-
bate for the reasons hereinabove discussed and also in ac-
cordance with Article 839 [of the Civil Code] which pro-
vides that if the formalities required by law have not been
complied with, the will shall be disallowed. In view
thereof, the Court shall henceforth proceed with intestate
succession in regard to the estate of the deceased Felisa
Tamio de Buenaventura in accordance with Article 960 of
the [Civil Code], to wit: "Art. 960. Legal or intestate suc-
cession takes place: (1) If a person dies without a will, or
with a void will, or one which has subsequently lost its va-
lidity, xxx."

SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the
appellate court dismissed the appeal and affirmed the res-
olution of the trial court.[4]

Thus, this petition.[5]

Petitioner admits that the will was acknowledged by the

testatrix and the witnesses at the testatrix's residence in
Quezon City before Atty. Directo and that, at that time,
Atty. Directo was a commissioned notary public for and in
Caloocan City. She, however, asserts that the fact that the
notary public was acting outside his territorial jurisdiction
did not affect the validity of the notarial will.

Did the will "acknowledged" by the testatrix and the in-

strumental witnesses before a notary public acting outside
the place of his commission satisfy the requirement under
Article 806 of the Civil Code? It did not.

Article 806 of the Civil Code provides:

ART. 806. Every will must be acknowledged before a no-
tary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.
One of the formalities required by law in connection with
the execution of a notarial will is that it must be acknowl-
edged before a notary public by the testator and the wit-
nesses.[6] This formal requirement is one of the indispen-
sable requisites for the validity of a will.[7] In other words,
a notarial will that is not acknowledged before a notary
public by the testator and the instrumental witnesses is
void and cannot be accepted for probate.

An acknowledgment is the act of one who has executed a

deed in going before some competent officer and declar-
ing it to be his act or deed.[8] In the case of a notarial will,
that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator

and the instrumental witnesses to declare before an officer
of the law, the notary public, that they executed and sub-
scribed to the will as their own free act or deed.[9] Such
declaration is under oath and under pain of perjury, thus
paving the way for the criminal prosecution of persons
who participate in the execution of spurious wills, or those
executed without the free consent of the testator.[10] It
also provides a further degree of assurance that the testa-
tor is of a certain mindset in making the testamentary dis-
positions to the persons instituted as heirs or designated
as devisees or legatees in the will.[11]
Acknowledgment can only be made before a competent
officer, that is, a lawyer duly commissioned as a notary
public.

In this connection, the relevant provisions of the Notarial

Law provide:
SECTION 237. Form of commission for notary public. -
The appointment of a notary public shall be in writing,
signed by the judge, and substantially in the following
form:

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________

This is to certify that ____________, of the municipal-

ity of ________ in said province, was on the ___ day of
__________, anno Domini nineteen hundred and
_______, appointed by me a notary public, within and
for the said province, for the term ending on the first day
of January, anno Domini nineteen hundred and _____.

_________________
Judge of the Court of
irst Instance[12] of said
Province

xxx xxx xxx

SECTION 240. Territorial jurisdiction. - The jurisdiction
of a notary public in a province shall be co-extensive with
the province. The jurisdiction of a notary public in the City
of Manila shall be co-extensive with said city. No notary
shall possess authority to do any notarial act beyond the
limits of his jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in
his favor to perform notarial acts.[13] It is issued "within
and for" a particular territorial jurisdiction and the notary
public's authority is co-extensive with it. In other words, a
notary public is authorized to perform notarial acts, in-
cluding the taking of acknowledgments, within that terri-
torial jurisdiction only. Outside the place of his commis-
sion, he is bereft of power to perform any notarial act; he
is not a notary public. Any notarial act outside the limits
of his jurisdiction has no force and effect. As this Court
categorically pronounced in Tecson v. Tecson:[14]
An acknowledgment taken outside the territorial limits of
the officer's jurisdiction is void as if the person taking it
ware wholly without official character. (emphasis sup-
plied)
Since Atty. Directo was not a commissioned notary public
for and in Quezon City, he lacked the authority to take the
acknowledgment of the testatrix and the instrumental wit-
nesses. In the same vein, the testatrix and her witnesses
could not have validly acknowledged the will before him.
Thus, Felisa Tamio de Buenaventura's last will and testa-
ment was, in effect, not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law it-
self authorizes their validity.

The violation of a mandatory or a prohibitory statute ren-

ders the act illegal and void unless the law itself declares
its continuing validity. Here, mandatory and prohibitory
statutes were transgressed in the execution of the alleged
"acknowledgment." The compulsory language of Article
806 of the Civil Code was not complied with and the in-
terdiction of Article 240 of the Notarial Law was breached.
Ineluctably, the acts of the testatrix, her witnesses and
Atty. Directo were all completely void.

The Court cannot turn a blind eye to Atty. Directo's par-

ticipation in the preparation, execution and unlawful "ac-
knowledgment" of Felisa Tamio de Buenaventura's will.
Had he exercised his notarial commission properly, the
intent of the law to effectuate the decedent's final state-
ments[15] as expressed in her will would not have come to
naught.[16] Hence, Atty. Directo should show cause why
he should not be administratively sanctioned as a member
of the bar and as an officer of the court.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

Let a copy of this decision be furnished the Commission
on Bar Discipline of the Integrated Bar of the Philippines
for investigation, report and recommendation on the pos-
sible misconduct of Atty. Macario O. Directo.

SO ORDERED.