G.R. No.
L-4888 May 25, 1953 hold the attestation clause under consideration sufficient
JOSE MERZA, petitioner, vs. PEDRO LOPEZ
PORRAS, respondent. TUAZON , J.:
Pilar Montealegre died leaving a will (Exhibit A) and a so-
called codicil (Exhibit B), disinheriting her husband Pedro
Porras and some of her relatives. The two documents
were submitted to probate but were denied by the trial
court, upon the grounds such as the defect of the
attestation clause on Exh. A and that Exh. B cannot be
considered a codicil for it was executed by the testator a
day before Exhibit A, thus it cannot be included in the
probate proceedings.
The opposition to the testament was predicated on
alleged defects of the attestation clause. It was alleged
that the clause did not state that the testatrix and the
witnesses had signed each and every page of the will or
that she had signed the instrument in the presence of the
witnesses. The CA dismissed the first objection, finding
that "failure to state such was cured by the fact that each
one of the page of the instrument appears to be signed by
the testatrix and the three attesting witnesses.
ISSUE:
1. Whether or not the attestation clause is sufficient and
valid.
2. Whether or not Exhibit B can be considered as a codicil
being executed one day before the testament.
HELD:
1. YES. It must be admitted that the attestation clause
was very poorly drawn, ungrammatical and difficult to
understand. But in relation to its purpose the implication
seems clear that the testatrix signed in the presence of
the witnesses. Considering that the witnesses' only
business at hand was to sign and attest to the testatrix's
signing of the document, and that the only actors of the
proceeding were the maker and the witnesses acting and
speaking collectively and in the first person, the phrase "in
our presence," used as it was in connection with the
process of signing, can not imply anything but the testatrix
signed before them. The prepositional phrase "in our
presence" denotes an active verb and the verb a subject.
The verb could not be other than signed and the subject
no other than the testatrix.
The use of the word "also" is no less enlightening. It
denotes that, as each of the witnesses sign in the
presence of the testatrix and of one another, so the
testatrix sign in similar or like manner in their presence.
In consonance with the principle of the liberal
interpretation, adhered to in numerous later decision of
this Court and affirmed and translated into inactment in
the new Civil Code (Article 827), we are constrained to
and valid. It is sufficient if from the language employed it
can reasonably be deduced that the attestation clause
fulfills what the law expects of it.
2 . CA agreed with the trial court that the document having
been executed one day before the testament could not be
considered as a codicil "because a codicil, as the word
implies, is only an addition to, or modification of, the will."
Furthermore, the Court of Appeals observed,
disinheritance "may not be made in any instrument other
than the will of testament, as expressly provided for in
article 849 of the Civil Code," and, "there being no
disposition as to the disinheritance of the oppositor, Pedro
Lopez Porras (the surviving spouse), in the said Exhibit A,
it is quite clear that he can not be disinherited in any other
instrument including codicil, which is just in the nature of
a simple affidavit."
Exhibit B does partake of the nature of a will. A will is
defined in article 667 of the Civil code of Spain as "the act
by which a persons dispose of all his property or a portion
of it," and in article 783 of the new Civil Code as "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.
Being of testamentary character and having been made
with all the formalities of law, Exhibit B is entitled to
probate as an independent testamentary disposition. It is
the general, well-established rule that two separate and
distinct wills may be probated if one does not revoke the
other and provided that the statutory requirements relative
to the execution of wills have been complied with.
Article 849 of the Civil Code of Spain does not require that
the disinheritance should be accomplished in the same
instrument by which the maker provides the disposition of
his or her property after his or death. This article merely
provides that "disinheritance can be affected only by a will
(any will) in which the legal cause upon which it is based
is expressly stated."
It is our judgment therefore that the instruments Exhibit A
and B admitted to probate, subject of courts to the right of
the disinherited person under particle 850 to contest the
disinheritance, and it is so ordered, with costs against the
appellee.
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee, vs. ANDRE
BRIMO, opponent-appellant. ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G.
Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of
partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of
his participation in the inheritance; (3) the denial of the
motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by the
Pietro Lana of the deceased's business and the deed of
transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the failure
not to postpone the approval of the scheme of partition
and the delivery of the deceased's business to Pietro
Lanza until the receipt of the depositions requested in
reference to the Turkish laws.
The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with
the laws of his Turkish nationality, for which reason they
are void as being in violation or article 10 of the Civil Code
which, among other things, provides the following:
Nevertheless, legal and testamentary
successions, in respect to the order of succession
as well as to the amount of the successional
rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the
person whose succession is in question,
whatever may be the nature of the property or the
country in which it may be situated.
But the fact is that the oppositor did not prove that said
testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the
matter, and in the absence of evidence on such laws, they
are presumed to be the same as those of the Philippines.
(Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the
Turkish laws are. He, himself, acknowledges it when he
desires to be given an opportunity to present evidence on
this point; so much so that he assigns as an error of the
court in not having deferred the approval of the scheme
of partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to
prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into
consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no
abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record
that the national law of the testator Joseph G. Brimo was
violated in the testamentary dispositions in question
which, not being contrary to our laws in force, must be
complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this
respect was not erroneous.
In regard to the first assignment of error which deals with
the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such
in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause
of the will, which says:
Second. I like desire to state that although by law,
I am a Turkish citizen, this citizenship having
been conferred upon me by conquest and not by
free choice, nor by nationality and, on the other
hand, having resided for a considerable length of
time in the Philippine Islands where I succeeded
in acquiring all of the property that I now possess,
it is my wish that the distribution of my property
and everything in connection with this, my will, be
made and disposed of in accordance with the
laws in force in the Philippine islands, requesting
all of my relatives to respect this wish, otherwise,
I annul and cancel beforehand whatever
disposition found in this will favorable to the
person or persons who fail to comply with this
request.
The institution of legatees in this will is conditional, and
the condition is that the instituted legatees must respect
the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid,
any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has
not respected the will of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said condition is void, being
contrary to law, for article 792 of the civil Code provides
the following:
Impossible conditions and those contrary to law
or good morals shall be considered as not
imposed and shall not prejudice the heir or
legatee in any manner whatsoever, even should
the testator otherwise provide.
And said condition is contrary to law because it expressly
ignores the testator's national law when, according to
article 10 of the civil Code above quoted, such national
law of the testator is the one to govern his testamentary
dispositions.

Said condition then, in the light of the legal provisions

above cited, is considered unwritten, and the institution of
legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will
regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void,
being contrary to law.

All of the remaining clauses of said will with all their

dispositions and requests are perfectly valid and effective
it not appearing that said clauses are contrary to the
testator's national law.

Therefore, the orders appealed from are modified and it

is directed that the distribution of this estate be made in
such a manner as to include the herein appellant Andre
Brimo as one of the legatees, and the scheme of partition
submitted by the judicial administrator is approved in all
other respects, without any pronouncement as to costs.

So ordered.
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of
law, from an order of the Court of First Instance of Manila
dated April 30, 1964, approving the project of partition
filed by the executor in Civil Case No. 37089
therein.1wph1.t
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State
of Texas and of the United States." By his first wife, Mary
E. Mallen, whom he divorced, he had five legitimate
children: Edward A. Bellis, George Bellis (who pre-
deceased him in infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his second wife, Violet
Kennedy, who survived him, he had three legitimate
children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for,
his distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first
wife, Mary E. Mallen; (b) P120,000.00 to his three
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis,
Miriam Palma Bellis, or P40,000.00 each and (c) after the
foregoing two items have been satisfied, the remainder
shall go to his seven surviving children by his first and
second wives, namely: Edward A. Bellis, Henry A. Bellis,
Alexander Bellis and Anna Bellis Allsman, Edwin G.
Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a
resident of San Antonio, Texas, U.S.A. His will was
admitted to probate in the Court of First Instance of Manila
on September 15, 1958.
The People's Bank and Trust Company, as executor of
the will, paid all the bequests therein including the amount
of $240,000.00 in the form of shares of stock to Mary E.
Mallen and to the three (3) illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each in satisfaction
of their respective legacies, or a total of P120,000.00,
which it released from time to time according as the lower
court approved and allowed the various motions or
petitions filed by the latter three requesting partial
advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its
administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and
Project of Partition" wherein it reported, inter alia, the
satisfaction of the legacy of Mary E. Mallen by the delivery
to her of shares of stock amounting to $240,000.00, and
the legacies of Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis in the amount of P40,000.00 each or
a total of P120,000.00. In the project of partition, the
executor pursuant to the "Twelfth" clause of the
testator's Last Will and Testament divided the
residuary estate into seven equal portions for the benefit
of the testator's seven legitimate children by his first and
second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam
Palma Bellis filed their respective oppositions to the
project of partition on the ground that they were deprived
of their legitimes as illegitimate children and, therefore,
compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice
to him, proof of service of which is evidenced by the
registry receipt submitted on April 27, 1964 by the
executor.1
After the parties filed their respective memoranda and
other pertinent pleadings, the lower court, on April 30,
1964, issued an order overruling the oppositions and
approving the executor's final account, report and
administration and project of partition. Relying upon Art.
16 of the Civil Code, it applied the national law of the
decedent, which in this case is Texas law, which did not
provide for legitimes.
Their respective motions for reconsideration having been
denied by the lower court on June 11, 1964, oppositors-
appellants appealed to this Court to raise the issue of
which law must apply Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor
even discuss, the doctrine of renvoi, applied by this Court
in Aznar v. Christensen Garcia, L-16749, January 31,
1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the
decedent was both a national of Texas and a domicile
thereof at the time of his death.2 So that even assuming
Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern,
the same would not result in a reference back (renvoi) to
Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex rei sitae) calling for the application of the
law of the place where the properties are situated, renvoi
would arise, since the properties here involved are found
in the Philippines. In the absence, however, of proof as to
the conflict of law rule of Texas, it should not be presumed
different from ours.3 Appellants' position is therefore not
rested on the doctrine of renvoi. As stated, they never
invoked nor even mentioned it in their arguments. Rather,
they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation
to Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a)
the order of succession; (b) the amount of successional
rights; (e) the intrinsic validity of the provisions of the will;
and (d) the capacity to succeed. They provide that
ART. 16. Real property as well as personal
property is subject to the law of the country where
it is situated.
chosen to leave, inter alia, the amount of successional
rights, to the decedent's national law. Specific provisions
must prevail over general ones.
Appellants would also point out that the decedent
executed two wills one to govern his Texas estate and
the other his Philippine estate arguing from this that he
intended Philippine law to govern his Philippine estate.
Assuming that such was the decedent's intention in
executing a separate Philippine will, it would not alter the
law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that
his properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and
void, for his national law cannot be ignored in regard to
those matters that Article 10 now Article 16 of the
Civil Code states said national law should govern.

However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law
of the person whose succession is under
consideration, whatever may he the nature of the
property and regardless of the country wherein
said property may be found.
ART. 1039. Capacity to succeed is governed by
the law of the nation of the decedent.
The parties admit that the decedent, Amos G. Bellis, was
a citizen of the State of Texas, U.S.A., and that under the
laws of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of
the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on
legitimes cannot be applied to the testacy of Amos G.
Bellis.
Wherefore, the order of the probate court is hereby
affirmed in toto, with costs against appellants. So ordered.

Appellants would however counter that Art. 17, paragraph

three, of the Civil Code, stating that

Prohibitive laws concerning persons, their acts or

property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments
promulgated, or by determinations or
conventions agreed upon in a foreign country.

prevails as the exception to Art. 16, par. 2 of the Civil

Code afore-quoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article" when
they incorporated Art. 11 of the old Civil Code as Art. 17
of the new Civil Code, while reproducing without
substantial change the second paragraph of Art. 10 of the
old Civil Code as Art. 16 in the new. It must have been
their purpose to make the second paragraph of Art. 16 a
specific provision in itself which must be applied in testate
and intestate succession. As further indication of this
legislative intent, Congress added a new provision, under
Art. 1039, which decrees that capacity to succeed is to be
governed by the national law of the decedent.

It is therefore evident that whatever public policy or good

customs may be involved in our System of legitimes,
Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically
G.R. No. 82027 March 29, 1990
ROMARICO G. VITUG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and
ROWENA FAUSTINO-CORONA, respondents.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this
Court 1 involving the probate of the two wills of the late
Dolores Luchangco Vitug, who died in New York, U. S.A.,
on November 10, 1980, naming private respondent
Rowena Faustino-Corona executrix. In our said decision,
we upheld the appointment of Nenita Alonte as co-special
administrator of Mrs. Vitug's estate with her (Mrs. Vitug's)
widower, petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion
asking for authority from the probate court to sell certain
shares of stock and real properties belonging to the estate
to cover allegedly his advances to the estate in the sum
of P667,731.66, plus interests, which he claimed were
personal funds. As found by the Court of Appeals, 2 the
alleged advances consisted of P58,147.40 spent for the
payment of estate tax, P518,834.27 as deficiency estate
tax, and P90,749.99 as "increment thereto." 3 According
to Mr. Vitug, he withdrew the sums of P518,834.27 and
P90,749.99 from savings account No. 35342-038 of the
Bank of America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion
to sell on the ground that the same funds withdrawn from
savings account No. 35342-038 were conjugal
partnership properties and part of the estate, and hence,
there was allegedly no ground for reimbursement. She
also sought his ouster for failure to include the sums in
question for inventory and for "concealment of funds
belonging to the estate." 4
Vitug insists that the said funds are his exclusive property
having acquired the same through a survivorship
agreement executed with his late wife and the bank on
June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK
OF AMERICAN NATIONAL TRUST AND SAVINGS
ASSOCIATION (hereinafter referred to as the BANK),
that all money now or hereafter deposited by us or
any or either of us with the BANK in our joint savings
current account shall be the property of all or both of
us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime,
and after the death of either or any of us shall belong
to and be the sole property of the survivor or
survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that
the receipt or check of either, any or all of us during
our lifetime, or the receipt or check of the survivor or
survivors, for any payment or withdrawal made for our
above-mentioned account shall be valid and sufficient
release and discharge of the BANK for such payment
or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and
granted "the motion to sell some of the estate of Dolores
L. Vitug, the proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total sum of
P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for
certiorari filed by the herein private respondent, held that
the above-quoted survivorship agreement constitutes a
conveyance mortis causa which "did not comply with the
formalities of a valid will as prescribed by Article 805 of
the Civil Code," 8 and secondly, assuming that it is a mere
donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of
Appeals states:
WHEREFORE, the order of respondent Judge dated
November 26, 1985 (Annex II, petition) is hereby set
aside insofar as it granted private respondent's
motion to sell certain properties of the estate of
Dolores L. Vitug for reimbursement of his alleged
advances to the estate, but the same order is
sustained in all other respects. In addition,
respondent Judge is directed to include provisionally
the deposits in Savings Account No. 35342-038 with
the Bank of America, Makati, in the inventory of actual
properties possessed by the spouses at the time of
the decedent's death. With costs against private
respondent. 10
In his petition, Vitug, the surviving spouse, assails the
appellate court's ruling on the strength of our decisions
in Rivera v. People's Bank and Trust Co. 11 and Macam v.
Gatmaitan 12 in which we sustained the validity of
"survivorship agreements" and considering them as
aleatory contracts. 13
The petition is meritorious.
The conveyance in question is not, first of all, one
of mortis causa, which should be embodied in a will. A will
has been defined as "a personal, solemn, revocable and
free act by which a capacitated person disposes of his
property and rights and declares or complies with duties
to take effect after his death." 14 In other words, the
bequest or device must pertain to the testator. 15 In this
case, the monies subject of savings account No. 35342-
038 were in the nature of conjugal funds In the case relied
on, Rivera v. People's Bank and Trust Co., 16 we rejected
claims that a survivorship agreement purports to deliver
one party's separate properties in favor of the other, but
simply, their joint holdings:
 xxx xxx xxx
... Such conclusion is evidently predicated on the
assumption that Stephenson was the exclusive owner
of the funds-deposited in the bank, which assumption
was in turn based on the facts (1) that the account
was originally opened in the name of Stephenson
alone and (2) that Ana Rivera "served only as
housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in
the name of another; and in the instant case it also
appears that Ana Rivera served her master for about
nineteen years without actually receiving her salary
from him. The fact that subsequently Stephenson
transferred the account to the name of himself and/or
Ana Rivera and executed with the latter the
survivorship agreement in question although there
was no relation of kinship between them but only that
of master and servant, nullifies the assumption that
Stephenson was the exclusive owner of the bank
account. In the absence, then, of clear proof to the
contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the
funds in question belonged to Edgar Stephenson and
Ana Rivera; that they were joint (and several) owners
thereof; and that either of them could withdraw any
part or the whole of said account during the lifetime of
both, and the balance, if any, upon the death of either,
belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an
aleatory contract whereby, according to article 1790
of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do something
as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which
is uncertain or will happen at an indeterminate time.
As already stated, Leonarda was the owner of the
house and Juana of the Buick automobile and most
of the furniture. By virtue of Exhibit C, Juana would
become the owner of the house in case Leonarda
died first, and Leonarda would become the owner of
the automobile and the furniture if Juana were to die
first. In this manner Leonarda and Juana reciprocally
assigned their respective property to one another
conditioned upon who might die first, the time of death
determining the event upon which the acquisition of
such right by the one or the other depended. This
contract, as any other contract, is binding upon the
parties thereto. Inasmuch as Leonarda had died
before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as
Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died
first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged
to one party, and hence it must be presumed to be
conjugal, having been acquired during the existence of
the marita. relations. 20
Neither is the survivorship agreement a donation inter
vivos, for obvious reasons, because it was to take effect
after the death of one party. Secondly, it is not a donation
between the spouses because it involved no conveyance
of a spouse's own properties to the other.
It is also our opinion that the agreement involves no
modification petition of the conjugal partnership, as held
by the Court of Appeals, 21 by "mere stipulation" 22 and
that it is no "cloak" 23 to circumvent the law on conjugal
property relations. Certainly, the spouses are not
prohibited by law to invest conjugal property, say, by way
of a joint and several bank account, more commonly
denominated in banking parlance as an "and/or" account.
In the case at bar, when the spouses Vitug opened
savings account No. 35342-038, they merely put what
rightfully belonged to them in a money-making venture.
They did not dispose of it in favor of the other, which would
have arguably been sanctionable as a prohibited
donation. And since the funds were conjugal, it can not be
said that one spouse could have pressured the other in
placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of
its "survivor-take-all" feature, but in reality, that contract
imposed a mere obligation with a term, the term being
death. Such agreements are permitted by the Civil
Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties
or both reciprocally bind themselves to give or to do
something in consideration of what the other shall
give or do upon the happening of an event which is
uncertain, or which is to occur at an indeterminate
time.
Under the aforequoted provision, the fulfillment of an
aleatory contract depends on either the happening of an
event which is (1) "uncertain," (2) "which is to occur at an
indeterminate time." A survivorship agreement, the sale
of a sweepstake ticket, a transaction stipulating on the
value of currency, and insurance have been held to fall
under the first category, while a contract for life annuity or
pension under Article 2021, et sequentia, has been
categorized under the second. 25 In either case, the
element of risk is present. In the case at bar, the risk was
the death of one party and survivorship of the other.
However, as we have warned:
xxx xxx xxx
 But although the survivorship agreement is per se not
contrary to law its operation or effect may be violative
of the law. For instance, if it be shown in a given case
that such agreement is a mere cloak to hide an
inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it
may be assailed and annulled upon such grounds. No
such vice has been imputed and established against
the agreement involved in this case. 26

xxx xxx xxx

There is no demonstration here that the survivorship

agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order to
frustrate our laws on wills, donations, and conjugal
partnership.

The conclusion is accordingly unavoidable that Mrs. Vitug

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

WHEREFORE, the decision of the respondent appellate

court, dated June 29, 1987, and its resolution, dated
February 9, 1988, are SET ASIDE.

No costs.

SO ORDERED.
G.R. No. L-7188 August 9, 1954
In re: Will and Testament of the deceased REVEREND
SANCHO ABADIA.
SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and
B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish
priest of Talisay, Cebu, executed a document purporting
to be his Last Will and Testament now marked Exhibit "A".
Resident of the City of Cebu, he died on January 14,
1943, in the municipality of Aloguinsan, Cebu, where he
was an evacuee. He left properties estimated at P8,000
in value. On October 2, 1946, one Andres Enriquez, one
of the legatees in Exhibit "A", filed a petition for its probate
in the Court of First Instance of Cebu. Some cousins and
nephews who would inherit the estate of the deceased if
he left no will, filed opposition.
During the hearing one of the attesting witnesses, the
other two being dead, testified without contradiction that
in his presence and in the presence of his co-witnesses,
Father Sancho wrote out in longhand Exhibit "A" in
Spanish which the testator spoke and understood; that he
(testator) signed on he left hand margin of the front page
of each of the three folios or sheets of which the document
is composed, and numbered the same with Arabic
numerals, and finally signed his name at the end of his
writing at the last page, all this, in the presence of the
three attesting witnesses after telling that it was his last
will and that the said three witnesses signed their names
on the last page after the attestation clause in his
presence and in the presence of each other. The
oppositors did not submit any evidence.
The learned trial court found and declared Exhibit "A" to
be a holographic will; that it was in the handwriting of the
testator and that although at the time it was executed and
at the time of the testator's death, holographic wills were
not permitted by law still, because at the time of the
hearing and when the case was to be decided the new
Civil Code was already in force, which Code permitted the
execution of holographic wills, under a liberal view, and to
carry out the intention of the testator which according to
the trial court is the controlling factor and may override
any defect in form, said trial court by order dated January
24, 1952, admitted to probate Exhibit "A", as the Last Will
and Testament of Father Sancho Abadia. The oppositors
are appealing from that decision; and because only
questions of law are involved in the appeal, the case was
certified to us by the Court of Appeals.
The new Civil Code (Republic Act No. 386) under article
810 thereof provides that a person may execute a
holographic will which must be entirely written, dated and
signed by the testator himself and need not be witnessed.
It is a fact, however, that at the time that Exhibit "A" was
executed in 1923 and at the time that Father Abadia died
in 1943, holographic wills were not permitted, and the law
at the time imposed certain requirements for the
execution of wills, such as numbering correlatively each
page (not folio or sheet) in letters and signing on the left
hand margin by the testator and by the three attesting
witnesses, requirements which were not complied with in
Exhibit "A" because the back pages of the first two folios
of the will were not signed by any one, not even by the
testator and were not numbered, and as to the three front
pages, they were signed only by the testator.
Interpreting and applying this requirement this Court in the
case of In re Estate of Saguinsin, 41 Phil., 875, 879,
referring to the failure of the testator and his witnesses to
sign on the left hand margin of every page, said:
. . . . This defect is radical and totally vitiates the
testament. It is not enough that the signatures
guaranteeing authenticity should appear upon
two folios or leaves; three pages having been
written on, the authenticity of all three of them
should be guaranteed by the signature of the
alleged testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring
to the same requirement, this Court declared:
From an examination of the document in
question, it appears that the left margins of the six
pages of the document are signed only by
Ventura Prieto. The noncompliance with section
2 of Act No. 2645 by the attesting witnesses who
omitted to sign with the testator at the left margin
of each of the five pages of the document alleged
to be the will of Ventura Prieto, is a fatal defect
that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May
we apply the provisions of the new Civil Code which not
allows holographic wills, like Exhibit "A" which provisions
were invoked by the appellee-petitioner and applied by
the lower court? But article 795 of this same new Civil
Code expressly provides: "The validity of a will as to its
form depends upon the observance of the law in force at
the time it is made." The above provision is but an
expression or statement of the weight of authority to the
affect that the validity of a will is to be judged not by the
law enforce at the time of the testator's death or at the
time the supposed will is presented in court for probate or
when the petition is decided by the court but at the time
the instrument was executed. One reason in support of
the rule is that although the will operates upon and after
the death of the testator, the wishes of the testator about
the disposition of his estate among his heirs and among
the legatees is given solemn expression at the time the
will is executed, and in reality, the legacy or bequest then
becomes a completed act. This ruling has been laid down
by this court in the case of In re Will of Riosa, 39 Phil., 23.
It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the

testator should be the ruling and controlling factor and that
all adequate remedies and interpretations should be
resorted to in order to carry out said intention, and that
when statutes passed after the execution of the will and
after the death of the testator lessen the formalities
required by law for the execution of wills, said subsequent
statutes should be applied so as to validate wills
defectively executed according to the law in force at the
time of execution. However, we should not forget that
from the day of the death of the testator, if he leaves a
will, the title of the legatees and devisees under it
becomes a vested right, protected under the due process
clause of the constitution against a subsequent change in
the statute adding new legal requirements of execution of
wills which would invalidate such a will. By parity of
reasoning, when one executes a will which is invalid for
failure to observe and follow the legal requirements at the
time of its execution then upon his death he should be
regarded and declared as having died intestate, and his
heirs will then inherit by intestate succession, and no
subsequent law with more liberal requirements or which
dispenses with such requirements as to execution should
be allowed to validate a defective will and thereby divest
the heirs of their vested rights in the estate by intestate
succession. The general rule is that the Legislature can
not validate void wills (57 Am. Jur., Wills, Sec. 231, pp.
192-193).
G.R. No. L-28946 January 16, 1929 case, not only is it not proven that English is the language
of the City of Baguio where the deceased Piraso lived and
In re estate of Piraso, deceased. where Exhibit A was drawn, but that the record contains
SIXTO ACOP, petitioner-appellant, positive proof that said Piraso knew no other language
vs. than the Igorrote dialect, with a smattering of Ilocano; that
SALMING PIRASO, ET AL., opponents-appellees. is, he did not know the English language in which Exhibit
A is written. So that even if such a presumption could have
Gibbs and McDonough and Roman Ozaeta for appellant. been raised in this case it would have been wholly
Adolfo A. Scheerer for appellees. contradicted and destroyed.

ROMUALDEZ, J.: We consider the other question raised in this appeal

This appeal was taken from the judgment of the Court of
First Instance of Benguet, denying the probate of the
instrument Exhibit A, as the last will and testament of the
deceased Piraso.
needless and immaterial to the adjudication of this case,
it having been, as it was, proven, that the instrument in
question could not be probated as the last will and
testament of the deceased Piraso, having been written in
the English language with which the latter was
unacquainted.

The proponent-appellant assigns the following as alleged
errors of the lower court:
1. In holding that in order to be valid the will in
question should have been drawn up in the
Ilocano dialect.
2. In not holding that the testator Piraso did not
know the Ilocano dialect well enough to
understand a will drawn up in said dialect.
3. In refusing to admit the will in question to
probate.
Such a result based upon solidly established facts would
be the same whether or not it be technically held that said
will, in order to be valid, must be written in the Ilocano
dialect; whether or not the Igorrote or Inibaloi dialect is a
cultivated language and used as a means of
communication in writing, and whether or not the testator
Piraso knew the Ilocano dialect well enough to
understand a will written in said dialect. The fact is, we
repeat, that it is quite certain that the instrument Exhibit A
was written in English which the supposed testator Piraso
did not know, and this is sufficient to invalidate said will
according to the clear and positive provisions of the law,
and inevitably prevents its probate.

The fundamental errors assigned refer chiefly to the part The judgment appealed from is affirmed, with the costs of
of the judgment which reads as follows: this instance against the appellant. So ordered.

The evidence shows that Piraso knew how to

speak the Ilocano dialect, although imperfectly,
and could make himself understood in that
dialect, and the court is of the opinion that his will
should have been written in that dialect.

Such statements were not unnecessary for the decision

of the case, once it has been proved without contradiction,
that the said deceased Piraso did not know English, in
which language the instrument Exhibit A, alleged to be his
will, is drawn. Section 628 of the Code of Civil Procedure,
strictly provides that:

"No will, except as provides in the preceding section" (as

to wills executed by a Spaniard or a resident of the
Philippine Islands, before the present Code of Civil
Procedure went into effect), "shall be valid to pass any
estate, real or personal, nor charge or affect the
same, unless it be written in the language or dialect
known by the testator," etc. (Emphasis supplied.) Nor can
the presumption in favor of the will established by this
court in Abangan vs. Abangan (40 Phil., 476), to the effect
that the testator is presumed to know the dialect of the
locality where he resides, unless there is proof to the
contrary, even he invoked in support of the probate of said
document Exhibit A, as a will, because, in the instant
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee, vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of
Cebu admitted to probate Ana Abangan's will executed
July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will,
consists of two sheets, the first of which contains all of the
disposition of the testatrix, duly signed at the bottom by
Martin Montalban (in the name and under the direction of
the testatrix) and by three witnesses. The following sheet
contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and
these omissions, according to appellants' contention, are
defects whereby the probate of the will should have been
denied. We are of the opinion that the will was duly
admitted to probate.
In requiring that each and every sheet of the will should
also be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645
(which is the one applicable in the case) evidently has for
its object (referring to the body of the will itself) to avoid
the substitution of any of said sheets, thereby changing
the testator's dispositions. But when these dispositions
are wholly written on only one sheet signed at the bottom
by the testator and three witnesses (as the instant case),
their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly,
the case of a will written on several sheets and must have
referred to the sheets which the testator and the
witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that
this sheet, already signed at the bottom, be signed twice.
We cannot attribute to the statute such an intention. As
these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that,
if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be
unneccessary; and if they do not guaranty, same
signatures, affixed on another part of same sheet, would
add nothing. We cannot assume that the statute regards
of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider
that their signatures written on the bottom do not guaranty
the authenticity of the sheet but, if repeated on the margin,
give sufficient security.
In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part
of the sheet, it is likewise clear that the object of Act No.
2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are
written on one sheet only, the object of the statute
disappears because the removal of this single sheet,
although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation
clause. Wherefore, without considering whether or not
this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures
of the testatrix and of the three witnesses on the margin
and the numbering of the pages of the sheet are
formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that
same is not necessary in the attestation clause because
this, as its name implies, appertains only to the witnesses
and not to the testator since the latter does not attest, but
executes, the will.
Synthesizing our opinion, we hold that in a will consisting
of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by
the testator and three witnesses and the second contains
only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the
testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordal ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustative of the testator's last
will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records
do not show that the testarix knew the dialect in which the
will is written. But the circumstance appearing in the will
itself that same was executed in the city of Cebu and in
the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the judgment appealed
from is hereby affirmed with costs against the appellants.
So ordered.
G.R. No. 1439 March 19, 1904
ANTONIO CASTAEDA, plaintiff-appellee,
vs.
JOSE E. ALEMANY, defendant-appellant.
WILLARD, J.:
(1) The evidence in this case shows to our satisfaction
that the will of Doa Juana Moreno was duly signed by
herself in the presence of three witnesses, who signed it
as witnesses in the presence of the testratrix and of each
other. It was therefore executed in conformity with law.
concerning which this hearing was had. It is true that the
evidence does not show that the document in court was
presented to the witnesses and identified by them, as
should have been done. But we think that we are justified
in saying that it was assumed by all the parties during the
trial in the court below that the will about which the
witnesses were testifying was the document then in court.
No suggestion of any kind was then made by the counsel
for the appellants that it was not the same instrument. In
the last question put to the witness Gonzales the phrase
"this will" is used by the counsel for the appellants. In their
argument in that court, found on page 15 of the record,
they treat the testimony of the witnesses as referring to
the will probate they were then opposing.

There is nothing in the language of section 618 of the The judgment of the court below is affirmed, eliminating
Code of Civil Procedure which supports the claim of the therefrom, however, the clause "el cual debera ejecutarse
appellants that the will must be written by the testator fiel y exactamente en todas sus partes." The costs of this
himself or by someone else in his presence and under his instance will be charged against the appellants.
express direction. That section requires (1) that the will be
in writing and (2) either that the testator sign it himself or,
if he does sign it, that it be signed by some one in his
presence and by his express direction. Who does the
mechanical work of writing the will is a matter of
indifference. The fact, therefore, that in this case the will
was typewritten in the office of the lawyer for the testratrix
is of no consequence. The English text of section 618 is
very plain. The mistakes in translation found in the first
Spanish edition of the code have been corrected in the
second.

(2) To establish conclusively as against everyone, and

once for all, the facts that a will was executed with the
formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will.
(Sec. 625.) The judgment in such proceedings determines
and can determine nothing more. In them the court has
no power to pass upon the validity of any provisions made
in the will. It can not decide, for example, that a certain
legacy is void and another one valid. It could not in this
case make any decision upon the question whether the
testratrix had the power to appoint by will a guardian for
the property of her children by her first husband, or
whether the person so appointed was or was not a
suitable person to discharge such trust.

All such questions must be decided in some other

proceeding. The grounds on which a will may be
disallowed are stated the section 634. Unless one of
those grounds appears the will must be allowed. They all
have to do with the personal condition of the testator at
the time of its execution and the formalities connected
therewith. It follows that neither this court nor the court
below has any jurisdiction in his proceedings to pass upon
the questions raised by the appellants by the assignment
of error relating to the appointment of a guardian for the
children of the deceased.

It is claimed by the appellants that there was no testimony

in the court below to show that the will executed by the
deceased was the same will presented to the court and
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant, vs.
JUDGE REYNALDO P. HONRADO of the Court of First
Instance of Rizal, Pasig Branch 25 and EVANGELINE
S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent
judge for having admitted to probate a will, which on its
face is void because it is written in English, a language
not known to the illiterate testatrix, and which is probably
a forged will because she and the attesting witnesses did
not appear before the notary as admitted by the notary
himself?
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 accumulated some
cash in two banks.
Agapito and Nenita begot a child named Lilia who became
a medical technologist and went abroad. Agapito also
became a soldier. He was disabled and his wife Nenita
was appointed as his guardian in 1953 when he was
declared an incompetent 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 Hermogena 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
Administration were also thumbmarked by her (pp. 38-39,
CA Rollo). In that wig, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans
Hospital in Quezon City. At the time of her death, she was
a resident of 7374 San Maximo Street, Olimpia, Makati,
Rizal. She owned a 150-square meter lot and house in
that place. She acquired the lot in 1966 (p. 134, Record
of testate case).
On January 13, 1975, Marina Paje, alleged to be a
laundrywoman of Marcelina (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 administratrix. On the following day,
April 1, Judge Honrado issued two orders directing the
Merchants Banking Corporation and the Bank of
America to allow Marina to withdraw the sum of
P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon
Castro, the custodian of the passbooks, to deliver them to
Marina.
Upon motion of Marina, Judge Honrado issued another
order dated April 11, 1975, instructing a deputy sheriff to
eject the occupants of the testatrix's house, among whom
was Nenita V. Suroza, and to place Marina in possession
thereof.
That order alerted Nenita to the existence of the
testamentary proceeding for the settlement of Marcelina's
estate. She and the other occupants of the decedent's
house filed on April 18 in the said proceeding a motion to
set aside the order of April 11 ejecting them. They alleged
that the decedent's son Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita
was Agapito's guardian and that Marilyn was not
Agapito's daughter 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 heiress (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 Marina 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 executrix (pp. 83-91,
Record).
To that motion was attached an affidavit of Zenaida A.
Penaojas the housemaid 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 assailed 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 admitted 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-petition for the issuance of letters of
administration because of the non-appearance 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 fraudulent will of
Marcelina. The complainant reiterated her contention that
the testatrix was illiterate as shown by the fact that she
affixed her thumbmark to the will and that she did not
know English, the language in which the win was written.
(In the decree of probate Judge Honrado did not make
any finding that the will was written in a language known
to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his
knowledge that the testatrix had a son named Agapito
(the testatrix's supposed sole compulsory and legal heir),
who was preterited in the will, did not take into account
the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge
Honrado and informed 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 Marina 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 persist, she might lose her
pension from the Federal Government.
Judge Honrado in his brief comment did not deal
specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal 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) prevented Nenita from having access to the
record of the testamentary proceeding. 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 investigation, 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 notarized the will. He swore that the testatrix
and the three attesting witnesses did not appear before
him and that he notarized the will "just to accommodate a
brother lawyer on the condition" that said lawyer would
bring to the notary the testatrix and the witnesses but the
lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because
Nenita's remedy was an appeal and her failure to do so
did not entitle her to resort to the special civil action of
certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654,
May 24, 1981).
Relying on that decision, Judge Honrado filed on
November 17, 1981 a motion to dismiss the administrative
case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against
respondent judge for his improper disposition of the
testate case which might have resulted in a miscarriage
of justice because the decedent's legal heirs and not the
instituted heiress in the void win should have inherited the
decedent's estate.
A judge may be criminally liable or knowingly rendering
an unjust judgment or interlocutory order or rendering a
manifestly unjust judgment or interlocutory 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 instance for serious misconduct or
inefficiency ( Sec. 67, Judiciary Law). Misconduct 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 performance 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 language "understood and known" to the
testatrix. But in its concluding paragraph, it was stated
that the will was read to the testatrix "and translated into
Filipino language". (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 notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as
the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he
could have noted not only the anomaly as to the language
of the will but also that there was something wrong in
instituting the supposed granddaughter as sole heiress
and giving nothing at all to her supposed father who was
still alive.
Furthermore, after the hearing conducted by respondent
deputy clerk of court, respondent judge could have
noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge

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

Under the circumstances, we find his negligence and

dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate

case of Marcelina S. Suroza, a fine equivalent to his
salary for one month is imposed on respondent judge (his
compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot

and academic because 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 November 21, 1980, 101 SCRA
225).

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
"Testate 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 testament 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
deceased, opposed the probate of her alleged will, and,
after appropriate proceedings, 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 hearing 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 always act
as aide, interpreter and adviser of Basilia Salud." Said
order, likewise, 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 Matias sought a reconsideration of said order of
March 10, 1956. Moreover, on March 24, 1956, she
expressed her conformity to said resignation, but objected
to the appointment, in lieu of Basilia Salud, of Victorina
Salud, on account of her antagonism to said Aurea Matias
she (Victorina Salud) having been the principal and
most interested witness for the opposition to the probate
of the alleged will of the deceased and proposed that
the administration 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 movant 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 Victorina 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 respondent 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
(petitioner) being the universal heiress to said estate and,
the executrix appointed 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 management
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
administratrix upon such ground; that the Rules of Court
do not permit the appointment of more than one special
administrator; that Horacio Rodriguez was removed
without giving petitioner a chance to be heard in
connection therewith; 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
deceased, 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 administrator 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 administrators 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 latter, 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 respondent 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 instrument 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 estate 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
concerned, for action in conformity with the views
expressed herein, with costs against respondents
Victorina Salud and Ramon Plata. It is so ordered.
 G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO,
deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., 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 testament of Antero
Mercado was signed by himself and also by us
below his name and of this attestation clause and
that of the left margin of the three pages thereof.
Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which
is spoken and understood by the testator, and it
bears the corresponding number in letter which
compose of three pages and all them were signed
in the presence of the testator and witnesses, and
the witnesses in the presence of the testator and
all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this
the third day of January, one thousand nine
hundred forty three, (1943) A.D.
by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his
name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is
that the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the cases
of De Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the
will is the usual signature of Antero Mercado or even one
of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of
the cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to
determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the
presence of the witnesses, and by the latter in the
presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with
against the petitioner. So ordered.

Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino

Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of
Ilocos Norte, ruled that the attestation clause failed (1) to
certify that the will was signed on all the left margins of
the three pages and at the end of the will by Atty.
Florentino Javier at the express request of the testator in
the presence of the testator and each and every one of
the witnesses; (2) to certify that after the signing of the
name of the testator by Atty. Javier at the former's request
said testator has written a cross at the end of his name
and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the
presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for

failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his
express direction, as required by section 618 of the Code
of Civil Procedure. The herein petitioner (who is appealing
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-
appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino
Cabacungan vs. Pedro Barut and another, No. 6284,1 just
decided by this court, wherein there was an application
for the probate of an alleged last will and testament of the
same person the probate of whose will is involved in this
suit.
This appeal arises out of an application on the part of
Pedro Barut to probate the last will and testament of Maria
Salomon, deceased. It is alleged in the petition of the
probate that Maria Salomon died on the 7th day of
November, 1908, in the pueblo of Sinait, Ilocos Sur,
leaving a last will and testament bearing date March 2,
1907. Severo Agayan, Timotea Inoselda, Catalino
Ragasa, and A. M. Jimenez are alleged to have been
witnesses to the execution thereof. By the terms of said
will Pedro Barut received the larger part of decedent's
property.
The original will appears on page 3 of the record and is in
the Ilocano dialect. Its translation into Spanish appears at
page 11. After disposing of her property the testatrix
revoked all former wills by her made. She also stated in
said will that being unable to read or write, the same had
been read to her by Ciriaco Concepcion and Timotea
Inoselda and that she had instructed Severo Agayan to
sign her name to it as testatrix.
The probate of the will was contested and opposed by a
number of the relatives of the deceased on various
grounds, among them that a later will had been executed
by the deceased. The will referred to as being a later will
is the one involved in case No. 6284 already referred to.
Proceeding for the probate of this later will were pending
at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the
purpose of considering them together.
In the case before us the learned probate court found that
the will was not entitled to probate upon the sole ground
that the handwriting of the person who it is alleged signed
the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other
witnesses to the will than that of the person whose
handwriting it was alleged to be. We do not believe that
the mere dissimilarity in writing thus mentioned by the
court is sufficient to overcome the uncontradicted
testimony of all the witnesses to the will that the signature
of the testatrix was written by Severo Agayan at her
request and in her presence and in the presence of all the
witnesses to the will. It is immaterial who writes the name
of the testatrix provided it is written at her request and in
her presence and in the presence of all the witnesses to
the execution of the will.
The court seems , by inference at least, to have had in
mind that under the law relating to the execution of a will
it is necessary that the person who signs the name of the
testatrix must afterwards sign his own name; and that, in
view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her
name, being, from its appearance, not the same
handwriting as that constituting the name of the testatrix,
the will is accordingly invalid, such fact indicating that the
person who signed the name of the testatrix failed to sign
his own. We do not believe that this contention can be
sustained. Section 618 of the Code of Civil Procedure
reads as follows:
No will, except as provided in the preceding
section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it
be in writing and signed by the testator, or by the
testator's name written by some other person in
his presence, and by his expenses direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of
each. . . .
This is the important part of the section under the terms
of which the court holds that the person who signs the
name of the testator for him must also sign his own name
The remainder of the section reads:
The attestation shall state the fact that the
testator signed the will, or caused it to be signed
by some other person, at his express direction, in
the presence of three witnesses, and that they
attested and subscribed it in his presence and in
the presence of each other. But the absence of
such form of attestation shall not render the will
invalid if it is proven that the will was in fact signed
and attested as in this section provided.
From these provisions it is entirely clear that, with respect
to the validity of the will, it is unimportant whether the
person who writes the name of the testatrix signs his own
or not. The important thing is that it clearly appears that
the name of the testatrix was signed at her express
direction in the presence of three witnesses and that they
attested and subscribed it in her presence and in the
presence of each other. That is all the statute requires. It
may be wise as a practical matter that the one who signs
the testator's name signs also his own; but that it is not
essential to the validity of the will. Whether one parson or
another signed the name of the testatrix in this case is
absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that
the requirement laid down by the trial court, if it did lay
down, is absolutely unnecessary under the law; and the
reasons underlying the provisions of the statute relating
to the execution of wills do not in any sense require such
a provision. From the standpoint of language it is an
impossibility to draw from the words of the law the
inference that the persons who signs the name of the
testator must sign his own name also. The law requires
only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the
law. The name of a person who is unable to write may be
signed by another by express direction to any instrument
known to the law. There is no necessity whatever, so far
as the validity of the instrument is concerned, for the
person who writes the name of the principal in the
document to sign his own name also. As a matter of policy
it may be wise that he do so inasmuch as it would give
such intimation as would enable a person proving the
document to demonstrate more readily the execution by
the principal. But as a matter of essential validity of the
document, it is unnecessary. The main thing to be
established in the execution of the will is the signature of
the testator. If that signature is proved, whether it be
written by himself or by another at his request, it is none
the less valid, and the fact of such signature can be
proved as perfectly and as completely when the person
signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the
lack of the signature of the person signing the name of the
principal is, in the particular case, a complete abrogation
of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
written by the witness signing at the request of the
testator.
The only question for decision in that case, as we have
before stated, was presented by the fact that the person
who was authorized to sign the name of the testator to the
will actually failed to sign such name but instead
signed his own thereto. The decision in that case related
only to that question.
Aside from the presentation of an alleged subsequent will
the contestants in this case have set forth no reason
whatever why the will involved in the present litigation
should not be probated. The due and legal execution of
the will by the testatrix is clearly established by the proofs
in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have already
spoken. We there held that said later will not the will of the
deceased.
The judgment of the probate court must be and is hereby
reversed and that court is directed to enter an order in the
usual form probating the will involved in this litigation and
to proceed with such probate in accordance with law.

There have been cited three cases which it is alleged are

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

The testatrix was not able to sign it for her.

Instead of writing her name he wrote his own
upon the will. Held, That the will was not duly
executed.

All of the above cases are precisely of this character.

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

Where a testator does not know, or is unable for

any reason, to sign the will himself, it shall be
signed in the following manner: "John Doe, by the
testator, Richard Roe;" or in this form: "By the
testator. John Doe, Richard Roe." All this must be
G.R. No. L-5971 February 27, 1911 BEATRIZ NERA, ET subscription of each signature, must be such that they
AL., plaintiffs-appellees, vs. NARCISA may see each other sign if they choose to do so. This, of
RIMANDO, defendant-appellant. CARSON, J.: course, does not mean that the testator and the
subscribing witnesses may be held to have executed the
The only question raised by the evidence in this case as instrument in the presence of each other if it appears that
to the due execution of the instrument propounded as a they would not have been able to see each other sign at
will in the court below, is whether one of the subscribing that moment, without changing their relative positions or
witnesses was present in the small room where it was existing conditions. The evidence in the case relied upon
executed at the time when the testator and the other by the trial judge discloses that "at the moment when the
subscribing witnesses attached their signatures; or witness Javellana signed the document he was actually
whether at that time he was outside, some eight or ten and physically present and in such position with relation
feet away, in a large room connecting with the smaller to Jaboneta that he could see everything that took place
room by a doorway, across which was hung a curtain by merely casting his eyes in the proper direction
which made it impossible for one in the outside room to and without any physical obstruction to prevent his doing
see the testator and the other subscribing witnesses in the so." And the decision merely laid down the doctrine that
act of attaching their signatures to the instrument. the question whether the testator and the subscribing
witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of
A majority of the members of the court is of opinion that
the fact that their eyes were actually cast upon the paper
this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time at the moment of its subscription by each of them, but that
when they attached their signatures to the instrument, and at that moment existing conditions and their position with
relation to each other were such that by merely casting
this finding, of course, disposes of the appeal and
the eyes in the proper direction they could have seen
necessitates the affirmance of the decree admitting the
each other sign. To extend the doctrine further would
document to probate as the last will and testament of the
deceased. 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
The trial judge does not appear to have considered the as one of the requisites in the execution of a will.
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. The decree entered by the court below admitting the
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the instrument propounded therein to probate as the last will
and testament of Pedro Rimando, deceased, is affirmed
subscribing witnesses was in the outer room when the
with costs of this instance against the appellant.
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, considering their mental and physical condition
and position with relation to each other at the moment
of inscription of each signature.

But it is especially to be noted that the position of the

parties with relation to each other at the moment of the
G.R. No. L-18979 June 30, 1964 IN THE MATTER OF
THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee, vs.
NATIVIDAD ICASIANO and ENRIQUE
ICASIANO, oppositors-appellants. REYES, J.B.L., J.:
Appeal from an order of the CFI of Manila admitting to
probate the document and its duplicate as the true last will
and testament of Josefa Villacorte, deceased, and
appointing 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, previous 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 contain the signature of one of the attesting witnesses,
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
executed in duplicate with all the legal requirements, and
that he was, on that date, submitting the signed duplicate
(Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad
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,
oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their
respective evidence, and after several hearings the court
issued 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 Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate
at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and attested by
three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy;
that the will was acknowledged by the testatrix and by the
said three instrumental witnesses on the same date
before attorney Jose Oyengco Ong, Notary Public in and
for the City of Manila; and that the will was actually
prepared by attorney Fermin Samson, who was also
present during the execution and signing of the
decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and
testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified
as to the due execution and authenticity of the said will.
So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses,
and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon
cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his
house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will, which was
surrendered simultaneously with the filing of the petition
and marked as Exhibit "A" consists of five pages, and
while signed at the end and in every page, it does not
Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses
in each and every page.
The testimony presented by the proponents of the will
tends to show that the original of the will and its duplicate
were subscribed at the end and on the left margin of each
and every page thereof by the testatrix herself and
attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one
another as witnesses (except for the missing signature of
attorney Natividad on page three (3) of the original); that
pages of the original and duplicate of said will were duly
numbered; that the attestation clause thereof contains all
the facts required by law to be recited therein and is
signed by the aforesaid attesting witnesses; that the will
is written in the language known to and spoken by the
testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of
Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page
three (3) of the original, admits that he may have lifted two
pages instead of one when he signed the same, but
affirmed that page three (3) was signed in his presence.
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 executed 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-appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased and not
enumerated or mentioned therein, while oppositors-
appellants 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 attestation
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 Martin Ramos for the
proponents, but principally because of the paucity of the
standards used by him to support the conclusion that the
differences between 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 writing 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 standard and challenged
writings were affixed to different kinds of paper, with
different 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 notary 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 dispositions 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 conduct she had no control, where the purpose of
the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration)
"witnesses may sabotage the will by muddling or bungling
it or the attestation clause".
That the failure of witness Natividad to sign page three (3)
was entirely through pure oversight is shown by his own
testimony as well as by the duplicate copy of the will,
which bears a complete set of signatures in every page.
The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.

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

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 duplicate 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 petition.

IN VIEW OF THE FOREGOING, the decision appealed

from is affirmed, with costs against appellants.
G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA

CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for
appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a

decision of the Court of First Instance of Samar, admitting
to probate the will allegedly executed by Vicente Cagro
who died in Laoangan, Pambujan, Samar, on February
14, 1949.

The main objection insisted upon by the appellant in that

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

We are of the opinion that the position taken by the

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

The petitioner and appellee contends that signatures of

the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on
a subsequent occasion and in the absence of the testator
and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the

probate of the will in question denied. So ordered with
costs against the petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador,

JJ., concur.
G.R. Nos. L-3272-73 November 29, 1951
MANUEL GONZALES, petitioner-appellant, vs.
MANOLITA GONZALES DE
CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN
GONZALES, oppositors-appellants.
PARAS, C.J.:
On November 27, 1948, Manuel Ibarra Vda. de Gonzales
(hereafter to be referred to as testatrix) died at the age of
about seventy-eight years, leaving five children, namely,
Alejandro Gonzales, Leopoldo Gonzales, Manolita
Gonzales de Carungcong, and Juan Gonzales. The
estate left by her is estimated at P150,000.
On December 22, 1948, Manuel Gonzales filed in the
Court of First Instance of Rizal a petition (Special
Proceeding No. 837) for the probate of an alleged will
executed by the testatrix on November 16, 1942 (Exhibit
BManuel Gonzales), devising to Manuel Gonzales the
greater portion of the estate, without impairing the
legitimes of the other children.
On December 31, 1948, Manolita G. de Carungcong filed
in the same court a petition (Special Proceeding No. 838)
for the probate of another alleged will executed by the
testatrix on May 5, 1945 (Exhibit 1Manolita G.
Carungcong), leaving to Manolita G. de Carungcong the
greater bulk of the estate, without impairing the legitimes
of the other children.
In his opposition filed on February 16, 1949, Alejandro
Gonzales, Jr. sought the disallowance of the wills
executed on November 16, 1942, and May 5, 1945, on
the ground that, assuming their validity, they had been
revoked by the testatrix in an instrument executed by her
on November 18, 1948 (Exhibit 2Alejandro and Juan
Gonzales), with the result that her estate should be
distributed as if she died intestate.
With the exception of Leopoldo Gonzales, the children of
the testatrix filed mutual oppositions to one or the other
instruments tending to negative their respective positions.
After a joint hearing, the Court of First Instance of Rizal
rendered a decision with the following dispositive
pronouncements:
All facts considered in the light of the evidence
presented and in the manner in which the
witnesses testified the court concludes and holds:
First: That Exhibit B Manuel Gonzales,
though validly executed on November 16, 1942,
was revoked by Exhibit 1Manolita G.
Carungcong in accordance with the provisions of
section 623 of the Code of Civil Procedure.
Second: That Exhibit 2 Alejandro and
Juan Gonzales being executed without the
knowledge and testamentary capacity of the
testatrix and being contrary to the provisions of
section 618 of the Code of Civil Procedure, the
said document is hereby declared null and void.
Third: That Exhibit 1 Manolita G.
Carungcong having been executed in
accordance with law the same is hereby declared
as the true and last will and testament of the
deceased Manuela Ibarra Viuda de Gonzales,
and said will is hereby admitted probate.
From this judgment petitioner Manuel Gonzales and
oppositors Alejandro Gonzales, Jr. and Juan Gonzales
have appealed. The appeal as to Juan Gonzales was
dismissed in view of his failure to pay the proportionate
share of the printing cost of the record on appeal.
In the parts material to the present appeal, the will
executed by the testatrix on May 5, 1945, is of the
following form and tenor:
IKALABING-DALAWA. Na ang aking HULING
BILIN AT TESTAMENTONG ito ay binubuo ng
PITONG (7) dahon o pagina na may bilang na
sunud-sunod at ang bawa't dahon o pagina ay
mayroong tunay kong lagda o firma, gayon din
ang lahat ng aking saksi o testigos.
SA KATUNAYAN ng lahat ng isinasaysay ko dito
ay aking nilagdaan ito dito sa Imus, Kavite,
Filipinas ngayong ika-5 ng Mayo ng taong 1945,
na nakaharap dito sa ating paglagda o pagfirma
ang tatlong saksi o testigos. At aking ding
nilagdaan o pinirmahan ang tagilirang kaliwa ng
lahat at bawa't dahon o pagina nitong testamento
kong ito sa harap ng lahat at bawa't isang saksi o
testigos at ang lahat at bawa't isa naman sa
kanila ay nangagsilagda o nagsifirma din dito
bilang saksi ko sa harap ko at sa harap ng lahat
at bawa't isa sa kanila, at ganoon din silang mga
saksi ko ay nangag-lagda o nagsi-firma sa
tagilirang kaliwa ng lahat at bawa't isa sa mga
dahon o pagina nitong aking testamento.
(Sgd.) MANUELA Y. VDA. DE GONZALES
MANUELA IBARRA VDA. DE GONZALES
Mga Saksi o Testigos:
(Sgd.) BIENVENIDO DE LOS REYES
(Sgd.) TAHIMIK T. SAYOC
(Sgd.) LUIS GAERLAN
It is contended for the appellants that this will does not
contain any attestation clause; that, assuming the
concluding paragraph to be the attestation clause, it is not
valid because it is the act of the testatrix and not of the
witnesses, and because it does not state the number of
sheets or pages of the will.
In the very recent case of Valentina Cuevas vs. Pilar
Achacoso, G.R. No. L-3497, decided May, 1951 * we
sustained, finding a precedent in Aldaba vs. Roque, 43
Phil., 378, an attestation clause made by the testator and
forming part of the body of the will. Through Mr. Justice
Bautista, we held:
The clause above quoted is the attestation clause
referred to in the law which, in our opinion,
substantially complies with its requirements. The
only apparent anomaly we find is that it appears
to be an attestation made by the testator himself
more than by the instrumental witnesses. This
apparent anomaly, however, is not in our opinion
serious nor substantial as to affect the validity of
the will, it appearing that right under the signature
of the testator, there appear the signatures of the
three instrumental witnesses.
Instrumental witnesses, as defined by Escriche in
his Diccionario Razobada de Legislacion, y
Jurisprudencia, Vol. 4, p. 1115, is on who takes
part in the execution of an instrument or writing"
(in re will of Tan Diuco, 45 Phil., 807, 809). An
instrumental witness, therefore, does not merely
attest to the signature of the testator but also to
the proper execution of the will. The fact that the
three instrumental witnesses have signed the will
immediately under the signature of the testator,
shows that they have in fact attested not only to
the genuineness of his signature but also to the
due execution of the will as embodied in the
attestation clause.
The attestation clause in question bears also
similarity with the attestation clause in the will
involved in Aldaba vs. Roque, (43 Phil., 378). In
that case, the attestation clause formed part of
the body of the will and its recital was made by
the testatrix herself and was signed by her and by
the three instrumental witnesses. In upholding the
validity of the will, the court said:
In reality, it appears that it is the testatrix who
makes the declaration about the points in the last
paragraph of the will; however, as the witnesses,
together with the testatrix, have signed the said
declaration, we are of the opinion and so hold that
the words above quoted of the testament
constitute a sufficient compliance with the
requirements of Act No. 2465.
Of course three of the Justices of this Court concurred in
the result, "in the possibility that the testator in the present
case, or the person or persons who prepared the will had
relied upon the ruling laid down in the case of Aldaba vs.
Roque, supra, and that it would now be unfair to reject the
present will when in its preparation a ruling of this Court
has been followed." But the case at bar still falls within this
view, the will (Exhibit 1Manolita G. Carongcong) having
been executed on May 5, 1945.
The attestation clause contained in the body of the will
being thus valid, the statement in the penultimate
paragraph of the will hereinabove quoted as to the
number of sheets or pages used, is sufficient attestation
which may be considered in conjunction with the last
paragraph. It is significant that the law does not require
the attestation to be contained in a single clause. While
perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be
ignored, especially when the authenticity of the will is not
assailed, as in this case.
The result reached in respect of the sufficiency of the will
(Exhibit 1Manolita G. Carongcong) necessarily
disposes of the contention of the appellant Manuel
Gonzales that the trial court erred in not admitting to
probate the will (Exhibit BManuel Gonzales), since the
latter will must be considered revoked by the subsequent
will (Exhibit 1Manolita G. Carongcong).
What remains to be discussed is the claim of appellant
Alejandro Gonzales, Jr. that the will (Exhibit 1Manolita
G. Carongcong) has been revoked by the testatrix in the
instrument of November 18, 1948 (Exhibit 2Alejandro
and Juan Gonzales) which provides as follows:
Ako, MANUEL YBARRA VDA. DE GONZALES,
may sapat na gulang at naninirahan sa ciudad ng
Rizal, may mahusay at wastong pag-iisip at
mabuting pagtatanda, sa pamamagitan ng
kasulatang ito at bilang huling kapasiyahan ay
sinasaysay ko ito at ipinahahayag sa ngayon sa
alin mang testamento o huling habilin na
napirmahan kong una sa kasulatang ito ay
pinawawalan ko ng saysay at kabuluhang lahat
pagkat hindi iyong tunay kong kalooban ngayon.
Sa katunayan ng lahat ng ito at sa pagkat hindi
ako makalagda ngayon ang pina-kiusapan si
Constancio Padilla na ilagda ako sa kasulatang
ito ngayon ika-17 ng Noviembre ng taong ito
1948, dito sa ciudad ng Pasay.
Appellee Manolita G. de Carungcong, like Manuel
Gonzales (as appellee), contends that the testatrix lacked
the testamentary capacity when she allegedly executed
the instrument of revocation, and their contention was
sustained by the trial court. We have examined the record
and found no valid reason for reversing the finding of said
court which had the benefit of observing and hearing the
witnesses testify. Upon the other hand, the following
considerations amply support the appealed decision:.
1. For more than ten years prior to her death, the testatrix
had suffered from hypertension. On November 14, 1948,
she had aphasia and on November 15, 1948, she was
taken to the hospital upon advice of the family physician,
Dr. Jose C. Leveriza. In the letter introducing her to the
hospital authorities (Exhibit EManuel Gonzales), Dr.
Leveriza stated that the testatrix was suffering from
hypertension and cerebral thrombosis. Particularly on
November 18, 1948, when the alleged instrument of
revocation was executed by her, the testatrix was in a
comatose and unconscious state and could not talk or
understand. The following is the testimony of Dr. Leveriza
portraying the physical condition of the testatrix up to
November 18, 1948: xxx
While appellant Alejandro Gonzales, Jr. has attempted to
show that Dr. Leveriza was not an expert, the latters's
testimony remains uncontradicted. The fact that the
testimony of the attesting witnesses tends to imply that
the testatrix was of sound mind at the time the alleged
instrument of revocation was executed, cannot prevail
over the findings of the attending physician, Dr. Leveriza,
because even Dr. Ramon C. Talavera (an attesting
witness) testified that although he had not examined the
testatrix, her case appeared serious; that he had a hunch
that "they were taking advantage of the last moment of
the deceased and they were trying to make me an
instrument in the accomplishment of their aims," and that
he had the idea that the testatrix was in doubtful condition
because he "could only judge from the people going
there.".
It is also argued that if the testatrix was in a comatose
condition, Dr. Leveriza would not have ordered to "let her
sit on bed or on chair and let her turn on her side
sometime." However, Dr. Leveriza has given the reason
for this prescription, namely, to avoid hypostatic
pneumonia.
In support of the contention that the testimony of the
attesting witnesses should be given more credence than
the opinion of an expert witness, reliance is placed on the
case of Caguioa vs. Calderon, 20 Phil., 400; Bagtas vs.
Paguio, 22 Phil., 227; Galvez vs. Galvez, 26 Phil., 243;
Samson vs. Corrales Tan Quintin, 44 Phil., 573;
Amata vs. Tablizo, 48 Phil., 485, and Neyra vs. Neyra, 42,
Off. Gaz., 2790 ** These cases are notably
distinguishable from the case at bar. The former refer to
situations in which the doctors were not in a position to
certify definitely as the testamentary capacity of the
testators at the time the wills therein involved were
executed, because they had not observed the testators
on said dates or never saw them; whereas the case now
before us involves a family physician who attended the
testatrix during her last illness and saw her on the day
when the alleged instrument of revocation was executed.
2. We cannot help expressing our surprise at the fact that
the instrument of revocation was allegedly executed on
November 18, 1948, when, according to the testimony of
Jose Padilla, the latter was asked by the testatrix to
prepare the necessary document as early as in the month
of May, 1948, and reminded about it for the second time
weeks before November 1, 1948, and for the third time
several days before the latter date (November 1, 1948).
The first excuse given by Jose Padilla for the delay is that
he was busy and the children of the testatrix had certain
disputes which he tried to settle. The second excuse is
that he was not able to secure soon enough from
Alejandro Gonzales, Jr. some documents of transfer
which he wanted to examine in connection with the
preparation of the desired instrument of revocation. We
are inclined to state that these excuses are rather poor. If
Jose Padilla was too busy to give attention to the matter,
he could have very easily informed the testatrix and the
latter, if really desirous of revoking her former wills, would
have employed another to prepare the requisite
document. The fact that there were disputes between the
children of the testatrix certainly was not an obstacle to
the accomplishment of the wish of the testatrix. Neither
was it necessary to examine the documents relating to the
properties of the testatrix, since the instrument of
revocation could be prepared without any reference to the
details of her estate. Indeed, the instrument (Exhibit 2
Alejandro and Juan Gonzales) is couched in general
terms.
3. Even under the theory of the appellant Alejandro
Gonzales, Jr. it is hard to rule that the testatrix had
sufficient testamentary capacity at the time of the
execution of the alleged instrument of revocation. In the
first place, Constancio Padilla (brother of Jose Padilla)
merely asked the testatrix, first, if she was agreeable to
the instrument of revocation prepared by Jose Padilla,
and secondly, if she was agreeable to the signing of said
document by Constancio Padilla, to which two questions
the testatrix allegedly answered "Yes". It is not pretended
that the testatrix said more about the matter or gave any
further instruction. The attesting witnesses were not
introduced to the testatrix, and their presence was not
even mentioned to her. it is obviously doubtful whether the
testatrix understood the meaning and extent of the
ceremony. Assuming that the testatrix answered in the
affirmative the two questions of Constancio Padilla,
without more, we cannot fairly attribute to her
manifestation of her desire to proceed, right then and
there, with the signing of the questioned instrument. In
other words, contrary to the recital of the attestation
clause, the testatrix cannot rightly be said to have
published her last will to the attesting witnesses.
The appealed decision is, therefore, affirmed without
costs. So ordered.
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma.
FELICIDAD JAVELLANA, 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, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses. The
contestant, Da. Matea Ledesma, sister and nearest
surviving relative of said deceased, appealed from the
decision, insisting that the said exhibits were not executed
in conformity with law. The appeal was made directly to
this Court because the value of the properties involved
exceeded 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 undue 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 presented 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 attorney
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
deceased took the paper and signed it in the presence of
Yap alone, and returned it with the statement that no one
would question it because the property involved was
exclusively hers.
Our examination of the testimony on record discloses no
grounds for reversing the trial Court's rejection of the
improbable story of the witnesses. It is squarely
contradicted by the concordant testimony of the
instrumental witnesses, 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 revealed 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 remembered 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
deceased'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 contradiction is hardly
consonant with this witness' 18 years of service to the
deceased.
Upon the other hand, the discrepancies in the testimony
of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence 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
confessed 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
deceased 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 happen to be the
same ones who attested the will of 1950) asserted that
after the codicil had been signed by the testatrix and the
witnesses at the San Pablo Hospital, the same was
signed and sealed by notary public Gimotea on the same
occasion. On the other hand, Gimotea affirmed that he did
not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily
imply conscious perversion of truth on the part of the
witnesses, but appears rather due to a well-established
phenomenon, the tendency of the mind, in recalling past
events, to substitute the usual and habitual for what differs
slightly from it (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 comparison of
Articles 805 and 806 of the new Civil Code reveals that
while testator and witnesses sign in the presence of each
other, all that is thereafter required is that "every will must
be acknowledged before a notary public by the testator
and the witnesses" (Art. 806); i.e., that the latter should
avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in
executing the testamentary disposition. This was done in
the case before us. The subsequent signing and sealing
by the notary of his certification that the testament was
duly acknowledged by the participants therein is no part
of the acknowledgment itself nor of the testamentary act.
Hence their separate execution out of the presence of the
testatrix and her witnesses can not be said to violate the
rule that testaments should be completed without
interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as
the Roman maxim puts it, "uno codem die ac tempore in
eadem loco", and no reversible error was committed by
the Court in so holding. It is noteworthy that Article 806 of
the new Civil Code does not contain words requiring that
the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was
executed.

The decision admitting the will to probate is affirmed, with

costs against appellant.
G.R. No. L-36033 November 5, 1982
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.
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,
Deceased; 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 attached the alleged last will and testament
of the late Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages. The first
page contains the entire testamentary dispositions and is
signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3)
attesting witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the petitioner's
compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified
on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C.
Pamatian issued the questioned order denying the
probate of the will of Dorotea Perez for want of a formality
in its execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with
their corresponding addresses so that they could be
properly notified and could intervene in the summary
settlement of the estate.
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 probate of the will. However, the motion
together with the previous manifestation and/or motion
could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal
assumed the position of presiding judge of the respondent
court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was
likewise denied 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 witnesses 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 subscribed by three or more
credible witnesses in the presence of the testator and
of one another.
The testator or the person requested by him to write
his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under
his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses
and signed the will and the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to the witnesses,
it shall be interpreted to them.
The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of
the testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient compliance
to sign the page, where the end of the will is found, at the
left hand margin of that page.
On the other hand, the petitioner maintains that Article
805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the
subscribing witnesses 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
intended to place so heavy an import on the space or
particular location where the signatures are to be found
as long as this space or particular location wherein the
signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another
person in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to
see and take note mentally that those things are, done
which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of
Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).
Insofar as the requirement of subscription is concerned, it
is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose
of Identification.
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of giving
the testator more freedom in expressing his last wishes
but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and
improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect
to the formalities in the execution of a will" (Report of the
Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully
met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary
dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no
question of fraud or substitution behind the questioned
order.
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire 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 following observations with respect to the
purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the
number of pages or sheets upon which the win is
written, which requirement has been held to be
mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In re will
of Andrada, 42 Phil., 180; Uy Coque vs. Navas L.
Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30;
Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these
cases seems to be that the attestation clause must
contain a statement of the number of sheets or pages
composing the will and that if this is missing or is
 omitted, it will have the effect of invalidating the will if
the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the
will itself. But here the situation is different. While the
attestation clause does not state the number of
sheets or pages upon which the will is written,
however, the last part of the body of the will contains
a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm
of similar cases where a broad and more liberal view
has been adopted to prevent the will of the testator
from being defeated by purely technical
considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the

following ruling which applies 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 before whom the testament was ratified by
testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single
witness over whose conduct she had no control
where the purpose of the law to guarantee the Identity
of the testament and its component pages is
sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests
to the fun observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49
Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or
bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted.

The orders of the respondent court which denied the
probate of tile will, the motion for reconsideration 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 probate of the wig and to conduct
further proceedings in accordance with this decision. No
pronouncement on costs.

SO ORDERED.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE
GUILLERMO P. VILLASOR, Presiding Judge of
Branch I, Court of First Instance of Cebu, and
MANUEL B. LUGAY, respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court
First Instance of Cebu allowing the probate of the last will
a testament of the late Valente Z. Cruz. Petitioner-
appellant Agapita N. Cruz, the surviving spouse of the
said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said
instrument was execute without the testator having been
fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed
last will and testament was not executed in accordance
with law. Notwithstanding her objection, the Court allowed
the probate of the said last will and testament Hence this
appeal by certiorari which was given due course.
The only question presented for determination, on which
the decision of the case hinges, is whether the supposed
last will and testament of Valente Z. Cruz (Exhibit "E") was
executed in accordance with law, particularly Articles 805
and 806 of the new Civil Code, the first requiring at least
three credible witnesses to attest and subscribe to the will,
and the second requiring the testator and the witnesses
to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely
Deogracias T. Jamaloas Jr., Dr. Francisco Paares and
Atty. Angel H. Teves, Jr., one of them, the last named, is
at the same time the Notary Public before whom the will
was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the
testator and of each other, considering that the three
attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the
notary public himself, petitioner argues that the result is
that only two witnesses appeared before the notary public
to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the
supposed executor of the will, following the reasoning of
the trial court, maintains that there is substantial
compliance with the legal requirement of having at least
three attesting witnesses even if the notary public acted
as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads
as follows:
It is said that there are, practical reasons for upholding
a will as against the purely technical reason that one
of the witnesses required by law signed as certifying to
an acknowledgment of the testator's signature under
oath rather than as attesting the execution of the
instrument.
After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant
that the last will and testament in question was not
executed in accordance with law. The notary public before
whom the will was acknowledged cannot be considered
as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil.
239, 247); to own as genuine, to assent, to admit; and
"before" means in front or preceding in space or ahead of.
(The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard
Dictionary of the English Language, p. 252; Webster's
New International Dictionary 2d. p. 245.) Consequently, if
the third witness were the notary public himself, he would
have to avow assent, or admit his having signed the will
in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That
function would defeated if the notary public were one of
the attesting instrumental witnesses. For them he would
be interested sustaining the validity of the will as it directly
involves him and the validity of his own act. It would place
him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that
notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v.
Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v.
Cox, 43 Ill. 130). There are others holding that his signing
merely as notary in a will nonetheless makes him a
witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;
In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269
S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re
Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A.
721; See also Trenwith v. Smallwood, 15 So. 1030). But
these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein
because the notaries public and witnesses referred to
aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted
not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
ART. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will or file another with the office of the Clerk of
Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one
the attesting and acknowledging witnesses, would have
the effect of having only two attesting witnesses to the will
which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses to
act as such and of Article 806 which requires that the
testator and the required number of witnesses must
appear before the notary public to acknowledge the will.
The result would be, as has been said, that only two
witnesses appeared before the notary public for or that
purpose. In the circumstances, the law would not be duly
in observed.

FOR ALL THE FOREGOING, the judgment appealed

from is hereby reversed and the probate of the last will
and testament of Valente Z. Cruz (Exhibit "E") is declared
not valid and hereby set aside.

Cost against the appellee.

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. CONRADO 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. CONRADO 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
NARCISO, ROSA NARCISO, JOSEFINA NARCISO,
VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS
NARCISO, ENCARNACION, NARCISO, MARIA
NARCISO, 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-MANAHAN, Oppositors-
Appellants.
SYLLABUS
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF
WILLS; GROUND FOR DISALLOWANCE;
TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING
HER TO READ THE PROVISIONS 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 acknowledgment 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 defective 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; ADMINISTRATORS;
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 unconscionably
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 issuance 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 administration 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 deceased, 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 persons 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 intended by the deceased to be her true will; that
the signatures of the deceased appearing 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 deceased, joined the group of
Dr. Jaime Rosario in registering opposition to the
appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, 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 proceeding 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. Oppositors 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 appointment, petitioner Consuelo
Gonzales Vda. de Precilla, in her capacity as special
administratrix 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 presented
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 thereafter; that the fact that the 1956 will consisted of
12 pages whereas the 1960 testament 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 considering 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 administratrix 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 oppositors 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 appointment 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, Gliceria A. del Rosario, during her
lifetime, executed two wills: one on 9 June 1956
consisting 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 Decena, 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 presence 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.
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

Of course, the interest and active participation of Alfonso (pages 20-21, t.s.n., hearing of 23 March 1966)
Precilla in the signing of this 1960 will are evident from the
records. The will appeared to have been prepared by one The records also show that although Dr. Tamesis
who is not conversant with the spelling of Tagalog words, operated of the left eye of the decedent at the Lourdes
and it has been shown that Alfonso Precilla is a Cebuano Hospital on 8 August 1960; as of 23 August 1960, inspite
who speaks Tagalog with a Visayan accent. 7 The of the glasses her vision was only "counting fingers," 17
witnesses to the will, two of whom are fellow Visayans, 8 at five feet. The cross-examination of the doctor further
admitted their relationship or closeness to Precilla. 9 It elicited the following responses:jgc:chanrobles.com.ph
was Precilla who instructed them to go to the house of
Gliceria del Rosario on 29 December 1960 to witness an "Q After she was discharged from the hospital you
important document, 10 and who took their residence prescribed lenses for her, or glasses?
certificates from them a few days before the will was
signed. 11 Precilla had met the notary public and "A After her discharge from the hospital, she was coming
witnesses Rosales and Lopez at the door of the residence to my clinic for further examination and then sometime
of the old woman; he ushered them to the room at the later glasses were prescribed.
second floor where the signing of the document took
place; 12 then he fetched witness Decena from the latters x x x
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 "Q And the glasses prescribed by you enabled her to
read, Doctor?
The oppositors-appellants in the present case, however,
challenging the correctness of the probate courts ruling, "A As far as my record is concerned, with the glasses for
maintain that on 29 December 1960 the eyesight of the left eye which I prescribed the eye which I operated
Gliceria del Rosario was so poor and defective that she she could see only forms but not read. That is on the
could not have read the provisions of the will, contrary to left eye.
the testimonies of witnesses Decena, Lopez and Rosales.
"Q How about the right eye?
On this point, we find the declarations in court of Dr. Jesus
V. Tamesis very material and illuminating. Said "A The same, although the vision on the right eye is even
ophthalmologist, whose expertise was admitted by both better than the left eye." (pages 34. 85. t.s.n., hearing of
parties, testified, among other things, that when Doa 23 March 1966).
Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens), Then, confronted with a medical certificate (Exhibit H)
15 and that it was "above normal in pressure", denoting a issued by him on 29 November 1965 certifying that
possible glaucoma, a disease that leads to blindness 16 Gliceria del Rosario was provided with aphakic lenses
As to the conditions of her right eye, Dr. Tamesis and "had been under medical supervision up to 1963 with
declared:jgc:chanrobles.com.ph apparently good vision", the doctor had this to
say: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 "Q When yon said that she had apparently good vision
you could inform the court as to the condition of the vision you mean that she was able to read?
of the patient as to the right eve?
"A No, not necessarily, only able to go around, take care
"A Under date of August 30, 1960, is the record of of herself and see. This I can tell you, this report was
refraction. that is setting of glass by myself which showed 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 her birthday, arrange flowers and attend to kitchen tasks
"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, therefore, 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 removal 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
eyesight 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
provisions 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 "Alfonso", "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
possessions 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
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 testator, 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 administratrix 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 consideration 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 administration 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 affirmed.
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
administratrix 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 question.
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. Precilla. And in Case G.R. No.
L-26864, petition is dismissed. No costs.
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and
Testament of the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner, vs. HON. RAMON G.
GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court,
First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
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 testament3 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 (petitioner) 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
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in
the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But
the disinheritance 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 notarial 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,
Laguna.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 documents 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 executed? 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 Institute),6 the contents of
which were interpreted in layman's terms by Dr. Ruperto
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
testator 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 capable of reading at the time his will and
codicil were prepared, the fact remains 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 necessary 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 instrumental 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 being 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 notary 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 contrary, 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 contents 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
conformity 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 instrumental 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 testator 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 (Potenciano 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 Probate 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
primordial 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 unwilling 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 respondent Court of Appeals dated 11 April
1986 is AFFIRMED. Considering the length of time that
this case has remained pending, this decision is
immediately executory. Costs against petitioner.

SO ORDERED.
G.R. No. 103554 May 28, 1993 TEODORO CANEDA,
LORENZA CANEDA, TERESA CANEDA, JUAN
CABALLERO, AUREA CABALLERO, OSCAR
LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented 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 Administrator of
the Estate of Mateo Caballero, 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
requirements 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
attesting witnesses, namely, Cipriano Labuca, Gregorio
Cabando and Flaviano Toregosa. The said testator was
duly assisted by his lawyer, Atty. Emilio Lumontad, and a
notary public, Atty. Filoteo Manigos, in the preparation of
that last will.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 appear to be related to the testator.2
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition 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
testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent
scheduled hearings were postponed for one reason to
another. On May 29, 1980, the testator passed away
before his petition could finally be heard by the probate
court.3 On February 25, 1981, Benoni 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 testator, instituted a second petition,
entitled "In the Matter of the Intestate Estate 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 consolidated
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 petitioners appeared as oppositors and
objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the
testator was already in the poor state of health such that
he could not have possibly executed the same.
Petitioners likewise reiterated the issue as to the
genuineness of the signature of the testator therein.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
Labuca 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 handwriting
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 Testament 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
attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence
and that they also signed the will and all the pages thereof
in the presence of the testator and of one another.
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 oppositors 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 presence 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 presented 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 another. 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
accordance 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 degree 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 testator and of one
another.
The testator or the person requested by him to write
his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation should state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to
the witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before
a notary public by a testator and the attesting
witness. 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 language
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 attesting 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 essential 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 witnessed
the signing by the testator of the will and all its
pages, and that saidwitnesses also signed the will and
every page thereof in the presence of the testator and of
one another.
The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to
safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or
decrease in the pages;23 whereas the subscription of the
signature of the testator and the attesting witnesses is
made for the purpose of authentication and identification,
and thus indicates that the will is the very same instrument
executed by the testator and attested to by the
witnesses.24
Further, by attesting and subscribing to the will, the
witnesses thereby declare 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 appertains 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 following manner:
The underlying and fundamental objectives
permeating the provisions on the law on wills in this
Project consists in the liberalization of the manner of
their execution with the end in view of giving the
testator more freedom in expressing his last wishes,
but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the
testator.
This objective is in accord with the modern tendency
with respect to the formalities in the execution of wills.
. . .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 correlatively, with the left
margin of each page thereof bearing the respective
signatures of the testator and the three attesting
witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect
and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at
the end thereof by the three attesting witnesses
hereto.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 addresses appear on the
Opposite of our respective names, we do hereby
certify that the Testament was read by him and the
testator, MATEO CABALLERO; has published unto
us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each
page, as his Last Will and Testament and he has the
same and every page thereof, on the spaces provided
for his signature and on the left hand margin, in the
presence of the said testator and in the presence of
each and all of us.
It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the
presence of the testator and of one another. "Attestation"
and "subscription" differ in meaning. Attestation is the act
of senses, while subscription is the act of the hand. The
former is mental, the latter mechanical, and to attest a will
is to know that it was published as such, and to certify the
facts required to constitute an actual and legal publication;
but to subscribe a paper published as a will is only to write
on the same paper the names of the witnesses, for the
sole purpose of identification.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 contravention of the express
requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to specifically state
the fact that the attesting witnesses the testator sign the
will and all its pages in their presence and that they, the
witnesses, likewise signed the will and every page thereof
in the presence of the testator and of each other. We
agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses
and states as well the number of pages that were used,
the same does not expressly state therein the
circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other.
The phrase "and he has signed the same and every page
thereof, on the spaces provided for his signature and on
the left hand margin," obviously refers to the testator and
not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament."
On the other hand, although the words "in the presence
of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the
witnesses since said phrase immediately follows the
words "he has signed the same and every page thereof,
on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final
logical analysis , is the statement that the witnesses
signed the will and every page thereof in the presence of
the testator and of one another.
It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or
the language used therein which would warrant the
application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence,
defects and imperfections in the form of attestation or
in the language used therein shall not render the will
invalid if it is not proved that the will was in fact
executed and attested in substantial compliance with
all the requirements of article 805" (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 witnesses, it certainly
cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence
of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does
not prove that the attesting witnesses did subscribe to the
will in the presence of the testator and of each other. The
execution of a will is supposed to be one act so that where
the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.33
We believe that the further comment of former Justice
J.B.L. Reyes34 regarding Article 809, wherein he urged
caution in the application of the substantial compliance
rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with similar
questions:
. . . The rule must be limited to disregarding those
defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses
are three or the will was notarized. All theses are facts
that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause
can be safely disregarded. But the total number of
pages, and whether all persons required to sign did
so in the presence of each other must substantially
appear in the attestation clause, being the only check
against perjury in the probate proceedings.
(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 employed therein. Such
defects or imperfections would not render a will invalid
should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and
attestation has been held to be limited to merely an
examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other.35 In such a
situation, the defect is not only in the form or language of
the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect
complained of in the present case since there is no
plausible way by which we can read into the questioned
attestation clause statement, or an implication thereof,
that the attesting witness did actually bear witness to the
signing by the testator of the will and all of its pages and
that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of
one another.
Furthermore, the rule on substantial compliance in Article
809 cannot be revoked or relied on by respondents since
it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause
or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution
of the will. In other words, defects must be remedied by
intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to
have been performed by the attesting witnesses can be
supplied by only extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no
basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting
to extrinsic evidence to prove the same and would
accordingly be doing by the indirection what in law he
cannot do directly.
4. Prior to the advent of the Civil Code on August 30,
1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving
issues centering on compliance with the legal formalities
required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act
No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and
adopted in the Civil Code.
One view 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 subject should be
interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one must
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
will, hence when an interpretation already given assures
such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last
will, must be disregarded. The subsequent cases of Avera
vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
39 40
Abella, Pecson vs. Coronel, Fernandez vs. Vergel de
Dios, et al.,41and Nayve vs. Mojal, et 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 reasons therefor:
In support of their argument on the assignment of
error above-mentioned, appellants rely on a series of
cases of this court beginning with (I)n the Matter of
the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil.,
405), and In re Estate of Neumark ([1923], 46 Phil.,
841), and ending with Sano vs. Quintana ([1925], 48
Phil., 506). Appellee counters with the citation of a
series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last
two decisions cited by opposing counsel, namely,
those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was
decided that an attestation clause which does not
recite that the witnesses signed the will and each and
every page thereof on the left margin in the presence
of the testator is defective, and such a defect annuls
the will. The case of Uy Coque vs. Sioca, supra, was
cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must
estate the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act
cannot be proved by the mere exhibition of the will, if
it is not stated therein. It was also held that the fact
that the testator and the witnesses signed each and
 every page of the will can be proved also by the mere
examination of the signatures appearing on the
document itself, and the omission to state such
evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in
doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are
fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first
place, the Mojal, decision was concurred in by only
four members of the court, less than a majority, with
two strong dissenting opinions; the Quintana decision
was concurred in by seven members of the court, a
clear majority, with one formal dissent. In the second
place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was
promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in
the third place, the Quintana decision is believed
more nearly to conform to the applicable provisions of
the law.
The right to dispose of property by will is governed
entirely by statute. The law of the case is here found
in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the
same Code, as unamended. It is in part provided in
section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of
sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every
page thereof, or caused some other person to write
his name, under his express direction, in the
presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the
presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed
in either of the following case: 1. If not executed
and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but
cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not
within the province of the courts to disregard the
legislative purpose so emphatically and clearly
expressed.
We adopt and reaffirm the decision in the case
of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case of Nayve
vs. Mojal and Aguilar, supra. (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, and Testate Estate of Toray52 went the way
51
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, Mendoza vs. Pilapil, 63 and Lopez vs.
62
Liboro,64 veered away from the strict interpretation rule
and established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a conflicting
welter of views and of the undeniable inclination towards
a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to
be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus
became what is now Article 809 of the Civil Code, with this
explanation of the Code Commission:
The present law provides for only one form of executing
a will, and that is, in accordance with the formalities
prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme
Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed
its attitude and has become more liberal in the
interpretation of the formalities in the execution of wills.
This liberal view is enunciated in the cases of Rodriguez
vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs.
Martir, G.R. No. 46995, June 21, 1940; and Alcala vs.
Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme
Court, it has practically gone back to the original
provisions of Section 618 of the Code of Civil Procedure
before its amendment by Act No. 2645 in the year 1916.
To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the
liberalization of the manner of executing wills, article
829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or
in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the
requirements of article 829."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 requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that

omissions which can be supplied by an examination of the
will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the
will itself.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.

SO ORDERED.
G.R. No. L-51546 January 28, 1980 - JOSE ANTONIO
GABUCAN, petitioner-appellant, vs.HON. JUDGE LUIS
D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA
G. ENCLONAR, respondents-appellees. AQUINO, J.:
This case is about the dismissal of a petition for the
probate of a notarial will on the ground that it does not
bear a thirty-centavo documentary stamp.
The Court of First Instance of Camiguin in its "decision" of
December 28, 1977 in Special Proceeding No. 41 for the
probate of the will of the late Rogaciano Gabucan,
dismissed the proceeding (erroneously characterizes as
an "action")
The proceeding was dismissed because the requisite
documentary stamp was not affixed to the notarial
acknowledgment in the will and, hence, according to
respondent Judge, it was not admissible in evidence,
citing section 238 of the Tax Code, now section 250 of the
1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable
document. An instrument, document, or paper
which is required by law to be stamped and which has
been signed, issued, accepted, or transferred without
being duly stamped, shall not be recorded, nor shall it
or any copy thereof or any record of transfer of the
same be admitted or used in evidence in any court
until the requisite stamp or stamps shall have been
affixed thereto and cancelled.
No notary public or other officer authorized to
administer oaths shall add his jurat or
acknowledgment to any document subject to
documentary stamp tax unless the proper
documentary stamps are affixed thereto and
cancelled.
We hold that the lower court manifestly erred in declaring
that, because no documentary stamp was affixed to the
will, there was "no will and testament to probate" and,
consequently, the alleged "action must of necessity be
dismissed".
What the probate court should have done was to require
the petitioner or proponent to affix the requisite thirty-
centavo documentary stamp to the notarial
acknowledgment of the will which is the taxable portion of
that document.
That procedure may be implied from the provision of
section 238 that the non-admissibility of the document,
which does not bear the requisite documentary stamp,
subsists only "until the requisite stamp or stamps shall
have been affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be
affixed at the time the taxable document is presented in
evidence (Del Castillo vs. Madrilena 49 Phil. 749). If the
promissory note does not bear a documentary stamp, the
court should have allowed plaintiff's tender of a stamp to
supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil.
637, that the lack of the documentary stamp on a
document does not invalidate such document. See Cia.
General de Tabacos vs. Jeanjaquet 12 Phil. 195, 201-2
and Delgado and Figueroa vs. Amenabar 16 Phil. 403,
405-6.)
WHEREFORE, the lower court's dismissal of the petition
for probate is reversed and set aside. It is directed to
decide the case on the merits in the light of the parties'
evidence. No costs.
SO ORDERED.

The probate court assumed that the notarial

acknowledgment of the said will is subject to the thirty-
centavo documentary stamp tax fixed in section 225 of the
Tax Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in

spite of petitioner's manifestation that he had already
attached the documentary stamp to the original of the will.
(See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17
SCRA 482, 486.)

The case was brought to this Court by means of a petition

for mandamus to compel the lower court to allow
petitioner's appeal from its decision. In this Court's
resolution of January 21, 1980 the petition for mandamus
was treated in the interest of substantial and speedy
justice as an appeal under Republic Act No. 5440 as well
as a special civil action of certiorari under Rule 65 of the
Rules of Court.