G.R. No.

L-36033 November 5, 1982 administrator was likewise denied because of the petitioner's failure to comply with the order
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, requiring him to submit the names of' the intestate heirs and their addresses.
(deceased): APOLONIO TABOADA, petitioner,
vs.
The petitioner decided to file the present petition.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent.
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
Erasmo M. Diola counsel for petition.
of the testatrix and of one another?

Hon. Avelino S. Rosal in his own behalf.

Article 805 of the Civil Code provides:

GUTIERREZ, JR. J.:

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
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, his presence, and by his express direction, and attested and subscribed by
Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of three or more credible witnesses in the presence of the testator and of one
the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied the probate of the another.
will, the motion for reconsideration and the motion for appointment of a special administrator.
The testator or the person requested by him to write his name and the
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will instrumental witnesses of the will, shall also sign, as aforesaid, each and every
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of page thereof, except the last, on the left margin, and all the pages shall be
two pages. The first page contains the entire testamentary dispositions and is signed at the end or numbered correlatively in letters placed on the upper part of each page.
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
The attestation shall state the number of pages used upon which the will is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
written, and the fact that the testator signed the will and every page thereof, or
margin by the testatrix.
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
Since no opposition was filed after the petitioner's compliance with the requirement of publication, signed the will and the pages thereof in the presence of the testator and of one
the trial court commissioned the branch clerk of court to receive the petitioner's evidence. another.
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.
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 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
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
petitioner was also required to submit the names of the intestate heirs with their corresponding
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
addresses so that they could be properly notified and could intervene in the summary settlement of
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
the estate.
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
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or found, at the left hand margin of that page.
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
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
submit the names of intestate heirs with their addresses be held in abeyance.
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
The petitioner filed a motion for reconsideration of the order denying the probate of the will. signature of the testatrix. He contends that it would be absurd that the legislature intended to place
However, the motion together with the previous manifestation and/or motion could not be acted upon so heavy an import on the space or particular location where the signatures are to be found as long
by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said as this space or particular location wherein the signatures are found is consistent with good faith and
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the honest frailties of human nature.
the position of presiding judge of the respondent court.
We find the petition meritorious.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation the testator himself or by the testator's name written by another person in his presence, and by his
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
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. 93980 June 27, 1994
CLEMENTE CALDE, petitioner,
vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.
Nestor P. Mondok for petitioner.
Lazaro Padong for private respondents.
PUNO, J.:
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of
appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and Codicil executed by
Calibia Lingdan Bulanglang, who died on March 20, 1976.
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She
also left a Last Will and Testament, dated October 30, 1972, and a Codicil thereto, dated July 24,
1973. Both documents contained the thumbmarks of decedent. They were also signed by three (3)
attesting witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal Judge and
Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of
Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the proceedings, and was duly
substituted by petitioner. Private respondents, relatives of decedent, opposed the Petitioner filed by
Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect that
decedent did not know; that decedent was mentally incapacitated to execute the two documents
because of her advanced age, illness and deafness; that decedent’s thumbmarks were procured
through fraud and undue influence; and that the codicil was not executed in accordance with law.
On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedent’s
will and its codicil. The decision was appealed to and reversed by the respondent Court of Appeals.
It held:
. . . (T)he will and codicil could pass the safeguards under Article 805 of the
New Civil Code but for one crucial factor of discrepancy in the color of ink when
the instrumental witnesses affixed their respective signatures. When subjected
to cross-examination, Codcodio Nacnas as witness testified as follows:
Q And all of you signed on the same table?
A Yes, sir.
Q And when you were all signing this Exhibit "B" and "B-1",
Exhibit "B" and "B-1" which is the testament was passed
around all of you so that each of you will sign
consecutively?
A Yes, sir.
Q Who was the first to sign?
A Calibia Lingdan Bulanglang.
Q After Calibia Lingdan Bulanglang was made to sign — I
withdraw the question. How did Calibia Lingdan Bulanglang
sign the last will and testament?
A She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb
to her name.
Q After she signed, who was the second to sign allegedly
all of you there present?
A Jose Becyagen.
Q With what did Jose Becyagen sign the testament, Exhibit
"B" and "B-1"?
A Ballpen.
Q And after Jose Becyagen signed his name with the
ballpen, who was the next to sign?
A Me, sir.
Q And Jose Becyagen passed you the paper and the
ballpen, Exhibit "B" and "B-1" plus the ballpen which used
to sign so that you could sign your name, is that correct?
A Yes, sir.
Q And then after you signed, who was the next to sign the
document, Exhibit "B" and "B-1"?
A Hilario Coto-ong.
Q So you passed also to Hilario Coto-ong the same Exhibit
"B" and "B-1" and the ballpen so that he could sign his
name as witness to the document, is it not?
A Yes, sir.
Q And that is the truth and you swear that to be the truth
before the Honorable Court?
ATTY. DALOG:
He already testified under oath, Your Honor.
COURT:
Witness may answer
A Yes, sir.
For his part, Obanan Ticangan likewise admitted during cross-examination in
regard to the codicil that:
Q When you signed Exhibit "D" and "D-1", did you all sign
with the same ballpen?
A One.
Such admissions from instrumental witnesses are indeed significant since they
point to no other conclusion than that the documents were not signed by them in
their presence but on different occasions since the same ballpen used by them
supposedly in succession could not have produced a different color from blue to
black and from black to blue. In fact, the attestation clause followed the same
pattern. The absurd sequence was repeated when they signed the codicil, for
which reason, We have no other alternative but to disallow the Last Will and
Codicil. Verily, if the witnesses and testatrix used the same ballpen, then their
signatures would have been in only one color, not in various ones as shown in
the documents. Moreover, the signatures, in different colors as they are, appear
to be of different broadness, some being finer than the others, indicating that,
contrary to what the testamentary witnesses declared on the witness stand, not
only one ballpen was used, and, therefore, showing that the documents were
not signed by the testatrix and instrumental witnesses in the presence of one
another. . . " (Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was
denied by the respondent court in its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the correctness of the respondent court’s
conclusion that both decedent’s will and codicil were not subscribed by the witnesses in the
presence of the testator and of one another, contrary to the requirements of Article 805 of the Civil
Code. He contends that:
1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING
BASED ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD
TO THE TESTIMONY OF JUDGE TOLETE WHICH IS AN EVIDENCE OF
SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE CALIBIA
LINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER
INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;
2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THE SUPREME COURT BY DISREGARDING
THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST
WILL AND TESTAMENT AND THE CODICIL OF THE LATE CALIBIA
LINGDAN BULANGLANG.
The petition must fail.
The question in the case at bench is one of fact: whether or not, based on the evidence submitted,
respondent appellate court erred in concluding that both decedent’s Last Will and Testament, and its
Codicil were subscribed by the instrumental witnesses on separate occasions. As a general rule,
factual findings of the Court of Appeals are considered final and conclusive, and cannot be reviewed
on appeal to this court. In the present instance, however, there is reason to make an exception to
that rule, since the finding of the respondent court is contrary to that of the trial court, viz.:
. . . (Private respondents) pointed out however, that the assertions of petitioner’s
witnesses are rife with contradictions, particularly the fact that the latter’s
signatures on the documents in issue appear to have been written in ballpens of
different colors contrary to the statements of said witnesses that all of them
signed with only one ballpen. The implication is that the subscribing witnesses
to the Will and Codicil, and the testatrix did not simultaneously sign each of the
documents in one sitting but did it piecemeal — a violation of Art. 805 of the
Code. This conclusion of the (private respondents) is purely circumstantial.
From this particular set of facts, numerous inferences without limits can be
drawn depending on which side of the fence one is on. For instance,
considering the time interval that elapsed between the making of the Will and
Codicil, and up to the filing of the petition for probate, the possibility is not
remote that one or two of the attesting witnesses may have forgotten certain
details that transpired when they attested the documents in question . . . (Rollo,
pp. 36-37.)
A review of the facts and circumstances upon which respondent Court of Appeals based its
impugned finding, however, fails to convince us that the testamentary documents in question were
subscribed and attested by the instrumental witnesses during a single occasion.
As sharply noted by respondent appellate court, the signatures of some attesting witnesses in
decedent’s will and its codicil were written in blue ink, while the others were in black. This
discrepancy was not explained by petitioner. Nobody of his six (6) witnesses testified that two pens
were used by the signatories on the two documents. In fact, two (2) of petitioner’s witnesses even
testified that only one (1) ballpen was used in signing the two testamentary documents.
It is accepted that there are three sources from which a tribunal may properly acquire knowledge for
making its decisions, namely: circumstantial evidence, testimonial evidence, and real evidence or
autoptic proference. Wigmore explains these sources as follows:
If, for example, it is desired to ascertain whether the accused has lost his right
hand and wears an iron hook in place of it, one source of belief on the subject
would be the testimony of a witness who had seen the arm; in believing this
testimonial evidence, there is an inference from the human assertion to the fact
asserted. A second source of belief would be the mark left on some substance
grasped or carried by the accused; in believing this circumstantial evidence,
there is an inference from the circumstance to the thing producing it. A third
source of belief remains, namely, the inspection by the tribunal of the accused’s
arm. This source differs from the other two in omitting any step of conscious
inference or reasoning, and in proceeding by direct self-perception, or autopsy.
It is unnecessary, for present purposes, to ask whether this is not, after all, a
third source of inference, i.e., an inference from the impressions or perceptions
of the tribunal to the objective existence of the thing perceived. The law does
not need and does not attempt to consider theories of psychology as to the
subjectivity of knowledge or the mediateness of perception. It assumes the
objectivity of external nature; and, for the purposes of judicial investigation, a
thing perceived by the tribunal as existing does exist.
There are indeed genuine cases of inference by the tribunal from things
perceived to other things unperceived — as, for example, from a person’s size,
complexion, and features, to his age; these cases of a real use of inference can
be later more fully distinguished . . . But we are here concerned with nothing
more than matters directly perceived — for example, that a person is of small
height or is of dark complexion; as to such matters, the perception by the
tribunal that the person is small or large, or that he has a dark or light
complexion, is a mode of acquiring belief which is independent of inference from
either testimonial or circumstantial evidence. It is the tribunal’s self-perception,
or autopsy, of the thing itself.
From the point of view of the litigant party furnishing this source of belief, it may
be termed Autoptic Proference. 3 (Citations omitted.)
In the case at bench, the autoptic proference contradicts the testimonial evidence produced by
petitioner. The will and its codicil, upon inspection by the respondent court, show in black and white
— or more accurately, in black and blue — that more than one pen was used by the signatories
thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioner’s claim
that both testamentary documents in question were subscribed to in accordance with the provisions
of Art. 805 of the Civil Code.
Neither did respondent court err when it did not accord great weight to the testimony of Judge
Tomas A. Tolete. It is true that his testimony contains a narration of how the two testamentary
documents were subscribed and attested to, starting from decedent’s thumbmarking thereof, to the
alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in
Judge Tolete’s testimony is there any kind of explanation for the different-colored signatures on the
testaments.
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court
of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071 disallowing the Last Will and
Testament, and the Codicil thereto, of the decedent Calibia Lingdan Bulanglang is AFFIRMED IN
TOTO. Costs against petitioner.
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.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of the law
and, therefore, should be admitted to probate . It appears that the will was signed by the testator and
was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the testator in their presence and
in the presence of each other but also that when they did so, the attestation clause was already
written thereon. Their testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do not
appear immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil.,
476), this court said that when the testamentary 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 such a case, the court said, the
requirement of the signatures on the left hand margin was not necessary because the purpose of the
law — which is to avoid the substitution of any of the sheets of the will, thereby changing the
testator's dispositions — has already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a subsequent occasion and not at
the uncontradicted testimony of said witnesses to the effect that such attestation clause was already
written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
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 primordial ends. But, on the other hand, also one must not lose sight of the
fact that it i 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
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. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of
wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect
of preventing intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the witnesses
signatures appear on the left margin and the real and only question is whether such signatures are
legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting
witness should sign the clause at the bottom. In the absence of such provision, there is no reason
why signatures on the margin are not good. A letter is not any the less the writter's simply because it
was signed, not at the conventional place but on the side or on top.
Feria, J., concurs.
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.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
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
Pañares 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.
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.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 19861 of the First Civil Cases Division of the
then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June
19832 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
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 Moreover, it was not only Atty. Rino who read the documents on
"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
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.

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the SO ORDERED.
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
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA
ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding
Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of the
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding
No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas
de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26, 1973,
respondent Judge Jose Colayco set the hearing of the probate of the holographic Win on July 21,
1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-win addressed to her children and entirely written and signed in the handwriting of
the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This is my
win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus
and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identified her signature. They further testified that their deceased mother understood
English, the language in which the holographic Will is written, and that the date "FEB./61 " was the
date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should contain the day, month and year
of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed
the probate of the holographic Will on the ground that the word "dated" has generally been held to
include the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana
Roxas de Jesus, is hereby disallowed for not having been executed as required
by the law. The order of August 24, 1973 is hereby set aside.
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which
reads:
ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Año mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is void for
non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month,
and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and day, and that if
any of these is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy —
The underlying and fundamental objectives permeating the provisions of the law
on wigs 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 sufficien 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 modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
emphasized that:
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
xxx xxx xxx Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.
... The law has a tender regard for the will of the testator expressed in his last
will and testament on the ground that any disposition made by the testator is WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET
better than that which the law can make. For this reason, intestate succession is ASIDE and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de
nothing more than a disposition based upon the presumed will of the decedent. Jesus is reinstated.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard SO ORDERED.
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or
fraud, lean towards its admission to probate, although the document may suffer
from some imperfection of language, or other non-essential defect. ... (Leynez v.
Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled 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 guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wins and Testaments. There is no question that the
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.
SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR, respondents-
appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador
is dated, as provided for in Article 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs),
and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus
and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by
T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly
had already acquired by devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised
on the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants
in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the
redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified
said joint decision of the court a quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence,
this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE
PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time for me to
partition the fishponds which were and had been bought or acquired by us, meaning with
their two mothers, hence there shall be no differences among themselves, those among
brothers and sisters, for it is I myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and sisters.
II — Second Page
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled and
 nothing will happen along these troubles among my children, and that they will be in good nature of the estate property to be disposed of and of the character of the testamentary act as a
relations among themselves, brothers and sisters; means to control the disposition of his estate.

And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they
so need, in order that there shall be nothing that anyone of them shall complain against
the other, and against anyone of the brothers and sisters.
III — THIRD PAGE
Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.

And that referring to the other places of property, where the said property is located, the
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
same being the fruits of our earnings of the two mothers of my children, there shall be
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
equal portion of each share among themselves, and or to be benefitted with all those
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
property, which property we have been able to acquire.
(P5,000.00).

That in order that there shall be basis of the truth of this writing (WILL) which I am here
SO ORDERED.
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am
signing my signature below hereof, and that this is what should be complied with, by all
the brothers and sisters, the children of their two mothers — JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with Article
810.1âwphi1 It is worthy of note to quote the first paragraph of the second page of the holographic
will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father. (emphasis supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the date of execution of the holographic
will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will 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."

Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the
will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he
was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the
G.R. No. L-12190 August 30, 1958 The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. Jimenez, whose testimonies may be summarized as follows:
GAN, petitioner-appellant,
vs. Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
ILDEFONSO YAP, oppositor-appellee. Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad,
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant. who was then preparing for the bar examinations. The latter replied it could be done without any
Arturo M. Tolentino for appellee. witness, provided the document was entirely in her handwriting, signed and dated by her. Vicente
Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of
BENGZON, J.: November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated
a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila. was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the
presence of Felina Esguerra, who again read it.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance
with a petition for the probate of a holographic will allegedly executed by the deceased, substantially Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece.
in these words: To these she showed the will, again in the presence of Felina Esguerra, who read it for the third
time.
Nobyembre 5, 1951.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his
kamag-anakang sumusunod: well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and
Vicente Esguerra, Sr. 5 Bahagi
read the will for the last time.2
.............................................
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease
Fausto E. Gan 2 Bahagi for several years before her death; that she had been treated by prominent physicians, Dr. Agerico
......................................................... Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that thereafter she felt well and
Rosario E. Gan 2 Bahagi after visiting interesting places, the couple returned to this country in August 1950. However, her
......................................................... ailment recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and
Filomena Alto 1 Bahagi alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap
.......................................................... spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found
the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen
were administered. Following the doctor's advice the patient stayed in bed, and did nothing the
Beatriz Alto 1 Bahagi whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These
.............................................................. two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on
that day.
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa The trial judge refused to credit the petitioner's evidence for several reasons, the most important of
ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At that her husband would not know it, it is strange she executed it in the presence of Felina Esguerra,
kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina
matupad ang aking kagustuhan. was a confidant of the decedent it is hard to believe that the latter would have allowed the former to
see and read the will several times; (c) it is improbable that the decedent would have permitted
(Lagda) Felicidad E. Alto-Yap. Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she precisely
wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose
being to conceal the will from her husband she would carry it around, even to the hospital, in her
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left
purse which could for one reason or another be opened by her husband; (e) if it is true that the
any will, nor executed any testament during her lifetime.
husband demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, to believe that he returned it without destroying the will, the theory of the petitioner being precisely
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence that the will was executed behind his back for fear he will destroy it.
this appeal.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of evidence are not available. And then the only guaranty of authenticity3 — the testator's handwriting
them, were presented in the motion to reconsider; but they failed to induce the court a quo to change — has disappeared.
its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the case should be decided not on Therefore, the question presents itself, may a holographic will be probated upon the testimony of
the weakness of the opposition but on the strength of the evidence of the petitioner, who has the witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?
burden of proof. How can the oppositor prove that such document was not in the testator's handwriting? His
witnesses who know testator's handwriting have not examined it. His experts can not testify,
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The because there is no way to compare the alleged testament with other documents admittedly, or
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
repealing the other forms, including holographic wills. millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may may have been shown a faked document, and having no interest to check the authenticity thereof
execute a holographic will which must be entirely written, dated, and signed by the hand of the have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
testator himself. It is subject to no other form and may be made in or out of the Philippines, and need knowledge that none could convict them of perjury, because no one could prove that they have not
not be witnessed." "been shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested by
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, exhibiting to them other writings sufficiently similar to those written by the deceased; but what
which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
credible witnesses in each and every page; such witnesses to attest to the number of sheets used handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen
and to the fact that the testator signed in their presence and that they signed in the presence of the and read a document which he believed was in the deceased's handwriting. And the court and the
testator and of each other. oppositor would practically be at the mercy of such witness (or witnesses) not only as to the
execution, but also as to the contents of the will. Does the law permit such a situation?
The object of such requirements it has been said, is to close the door against bad faith and fraud, to
prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will
476) and to avoid those who have no right to succeed the testator would succeed him and be by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet such
benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal Rules could not have contemplated holographic wills which could not then be validly made here.
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Could Rule 77 be extended, by analogy, to holographic wills?
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing Spanish commentators agree that one of the greatest objections to the holographic will is that it may
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must be lost or stolen4 — an implied admission that such loss or theft renders it useless..
testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the court may form its This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
opinion as to the genuineness and authenticity of the testament, and the circumstances its due (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who
execution. depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been proven he shall order that it be filed (Art.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since 693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater
as stated, they need no witnesses; provided however, that they are "entirely written, dated, and degree. It requires that the surviving spouse and the legitimate ascendants and descendants be
signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the summoned so that they may make "any statement they may desire to submit with respect to the
document itself as material proof of authenticity, and as its own safeguard, since it could at any time, authenticity of the will." As it is universally admitted that the holographic will is usually done by the
be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate of a testator and by himself alone, to prevent others from knowing either its execution or its contents, the
holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows above article 692 could not have the idea of simply permitting such relatives to state whether they
the handwriting and signature of the testator explicitly declare that the will and the signature are in know of the will, but whether in the face of the document itself they think the testator wrote it.
the handwriting of the testator. If the will is contested, at least three such witnesses shall be Obviously, this they can't do unless the will itself is presented to the Court and to them.
required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the
court deem it necessary, expert testimony may be resorted to." Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with
the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated
The witnesses so presented do not need to have seen the execution of the holographic will. They when the document is not presented for their examination. If it be argued that such choice is not
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in essential, because anyway the relatives may oppose, the answer is that their opposition will be at a
the testator's hand. However, the oppositor may present other witnesses who also know the distinct disadvantage, and they have the right and privilege to comply with the will, if genuine, a right
testator's handwriting, or some expert witnesses, who after comparing the will with other writings or which they should not be denied by withholding inspection thereof from them.
letters of the deceased, have come to the conclusion that such will has not been written by the hand
of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use We find confirmation of these ideas--about exhibition of the document itself--in the decision of the
its own visual sense, and decide in the face of the document, whether the will submitted to it has Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document
indeed been written by the testator. containing testamentary dispositions in the handwriting of the deceased, but apparently
mutilated, the signature and some words having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code
(Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el
verbo se emplea, se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad competente, para au
adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la
persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que
los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara
la letra de la manda, sea confirmada la manda. E depues que todo esto fuere connoscido,
el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance
with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic
will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V,
page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a
Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal
may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto
E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference
lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in
the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on
the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read
the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all
good faith affirm its genuineness and authenticity. The will having been lost — the forger may have
purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility
of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in
the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting
which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by
the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's
disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard
to believe that the deceased should show her will precisely to relatives who had received nothing
from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give
them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did she not entrust it
to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip to Davao,
a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.
6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves
the determination of the quantity of evidence required for the probate of a holographic
will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp.
22-24):
"Briefly speaking, the following facts were established by the petitioner; that on
September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon
City, known to be the last residence of said testatrix; that Francisco Azaola,
petitioner herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir
as against the nephew of deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh. C) one month, more or
less, before the death of the testatrix, as the same was handed to him and his
wife; that the witness testified also that he recognized all the signatures
appearing in the holographic will (Exh. C) as the handwriting of the testatrix and
to reinforce said statement, witness presented the mortgage (Exh. E), the
special power of the attorney (Exh. F), and the general power of attorney (Exh.
F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-
2), and that there were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix, for comparison
purposes; that said witness, Azaola, testified that the penmanship appearing in
the aforesaid documentary evidence is in the handwriting of the testatrix as well
as the signatures appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing therein are the
signatures of the testatrix; that said witness, in answer to a question of his
counsel admitted that the holographic will was handed to him by the testatrix.
"apparently it must have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when the same witness
was asked by counsel if he was familiar with the penmanship and handwriting of
the deceased Fortunata Vda. de Yance, he answered positively in the
affirmative and when he was asked again whether the penmanship referred to in
the previous answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the property of the
deceased in Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and
his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of August 1957 and
not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that the body of the will
was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be denied by the
adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at least
one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If the
will is contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not contested, he
was not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic will, none
being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of
witness possessing the requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing any three witnesses;
they must be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express) "that the will
and the signature are in the handwriting of the testator". There may be no available
witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently the reason why the second paragraph of
Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding paragraph,
and if the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found And because the law leaves it to the trial court if experts are still needed, no unfavourable
(or what amounts to the same thing, that no competent witness may be willing to testify to inference can be drawn from a party's failure to offer expert evidence, until and unless
the authenticity of the will), and provides for resort to expert evidence to supply the the court expresses dissatisfaction with the testimony of the lay witnesses.
deficiency.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is
It may be true that the rule of this article (requiring that three witnesses be presented if merely directory and is not mandatory.
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Considering, however, that this is the first occasion in which this Court has been called
Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be upon to construe the import of said article, the interest of justice would be better served,
considered mandatory only in the case of ordinary testaments, precisely because the in our opinion, by giving the parties ample opportunity to adduce additional evidence,
presence of at least three witnesses at the execution of ordinary wills is made by law including expert witnesses, should the Court deem them necessary.
essential to their validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided. In view of the foregoing, the decision appealed from is set aside, and the records ordered
remanded to the Court of origin, with instructions to hold a new trial in conformity with this
opinion. But evidence already on record shall not be retaken. No costs.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the
Court deem it necessary", which reveal that what the law deems essential is that the
Court should be convinced of the will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the ill is genuine,
it may consider it unnecessary to call for expert evidence. On the other hand, if no
competent witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to
exhaust all available lines of inquiry, for the state is as much interested as the proponent
that the true intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889,
the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:

La manera como esta concebida la redaccion del ultimo apartado de dicho

precepto induce la conclusion de que siempre o por lo menos, en la mayor parte
de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de
la autenticidad del testamento olografo, aunque ya esten insertas en los autos
del expediente las declaraciones testificales. La prudencia con que el Juez debe
de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada
y peligrosa del testamento olografo lo hace necesario para mayor garantia de
todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del
dicho profano de los testigos y un modo de desvanecer las ultimas dudas que
pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y
declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre
que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.

El arbitrio judicial en este caso debe formarse con independencia de los

sucesos y de su significacion, para responder debidamente de las resoluciones
que haya de dictar.
 [G.R. No. 123486. August 12, 1999] to establish sufficient factual and legal basis for the probate of the holographic will of the deceased
Matilde Seo Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which
reads:
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE R.
CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents. WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well
taken, same is granted, and the petition for probate of the document (Exhibit S) on the purported
DECISION Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence and
lack of merits.[7]
PARDO, J.:
On December 12, 1990, respondents filed a notice of appeal, [8] and in support of their appeal,
Before us is a petition for review on certiorari of the decision of the Court of Appeals[1] and its the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto
resolution denying reconsideration, ruling: Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo
Waga; and (6) Evangeline Calugay.
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal To have a clear understanding of the testimonies of the witnesses, we recite an account of
Binanay, the authenticity of testators holographic will has been established and the handwriting and their testimonies.
signature therein (exhibit S) are hers, enough to probate said will. Reversal of the
judgment appealed from and the probate of the holographic will in question be called for. The rule is Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special
that after plaintiff has completed presentation of his evidence and the defendant files a motion for proceedings for the probate of the holographic will of the deceased was filed. He produced and
judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown identified the. records of the case. The documents presented bear the signature of the deceased,
no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting
movant loses his right to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of of the testatrix, with the writing treated or admitted as genuine by the party against whom the
Court). Judgment may, therefore, be rendered for appellant in the instant case. evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of identify the voters affidavit of the decedent. However, the voters affidavit was not produced for the
the holographic will of the testator Matilde Seo Vda. de Ramonal.[2] same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her
The facts are as follows:
aunt, and that after the death of Matildes husband, the latter lived with her in her parents house for
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and eleven (11) years, from 1958 to 1969. During those eleven (11) years of close association with the
legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her
Regional Trial Court, Misamis Oriental, Branch 18, a petition[3] for probate of the holographic will of (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of
the deceased, who died on January 16, 1990. commercial buildings, and the deceased always issued receipts. In addition to this, she (witness
Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of letters of the deceased to her creditors.
sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud,
undue influence, and duress employed in the person of the testator, and the will was written Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de
voluntarily. Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely
written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the
The assessed value of the decedents property, including all real and personal property was signatures in said will, were that of the deceased.
about P400,000.00, at the time of her death.[4]
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro,
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition [5] to the he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in
petition for probate, alleging that the holographic will was a forgery and that the same is even connection with the intestate proceedings of her late husband, as a result of which he is familiar with
illegible. This gives an impression that a third hand of an interested party other than the true hand of the handwriting of the latter. He testified that the signature appearing in the holographic will was
Matilde Seo Vda. de Ramonal executed the holographic will. similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

Petitioners argued that the repeated dates incorporated or appearing on the will after every The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of
disposition is out of the ordinary. If the deceased was the one who executed the will, and was not Environment and Natural Resources, Region 10. She testified that she processed the application of
forced, the dates and the signature should appear at the bottom after the dispositions, as regularly the deceased for pasture permit and was familiar with the signature of the deceased, since the
done and not after every disposition. And assuming that the holographic will is in the handwriting of deceased signed documents in her presence, when the latter was applying for pasture permit.
the deceased, it was procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery. Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the
deceased since birth, and was in fact adopted by the latter. That after a long period of time she
Respondents presented six (6) witnesses and various documentary evidence. Petitioners became familiar with the signature of the deceased. She testified that the signature appearing in the
instead of presenting their evidence, filed a demurrer[6] to evidence, claiming that respondents failed holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal.
 The holographic will which was written in Visayan, is translated in English as follows: "August 30,1978

Instruction Gene and Manuel:

August 30, 1978 "Follow my instruction in order that I will rest peacefully.

1. My share at Cogon, Raminal Street, for Evangeline Calugay. Mama

(Sgd) Matilde Vda de Ramonal Matilde Vda de Ramonal

August 30, 1978 On October 9, 1995, the Court of Appeals, rendered decision[9] ruling that the appeal was
meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr.
Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

x x x even if the genuineness of the holographic will were contested, we are of the opinion that
(Sgd) Matilde Vda de Ramonal
Article 811 of our present civil code can not be interpreted as to require the compulsory presentation
of three witnesses to identify the handwriting of the testator, under penalty of having the probate
August 30, 1978 denied. Since no witness may have been present at the execution of the holographic will, none being
required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not
3. My jewelrys shall be divided among: merely a question of finding and producing any three witnesses; they must be witnesses who know
the handwriting and signature of the testator and who can declare (truthfully, of course, even if the
1. Eufemia Patigas law does not express) that the will and the signature are in the handwriting of the testator. There
may be no available witness acquainted with the testators hand; or even if so familiarized, the
witness may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of
2. Josefina Salcedo article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that
3. Evangeline Calugay
in the absence of any competent witness referred to in the preceding paragraph, and if the court
(Sgd)Matilde Vda de Ramonal deems it necessary, expert testimony may be resorted to.

August 30, 1978 As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the deficiency.
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

It may be true that the rule of this article (requiring that three witnesses be presented if the will is
(Sgd) Matilde Vda de Ramonal contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can
"August 30, 1978 not be ignored that the requirement can be considered mandatory only in case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, need be present (art.10), and the rule requiring production of three witnesses must be
Helen must continue with the Sta. Cruz, once I am no longer around. deemed merely permissive if absurd results are to be avoided.

(Sgd) Matilde Vda de Ramonal Again, under Art.811, the resort to expert evidence is conditioned by the words if the court deem it
necessary, which reveal that what the law deems essential is that the court should be convinced of
August 30, 1978 the wills authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced is
6. Bury me where my husband Justo is ever buried. convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the
court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
(Sgd) Matilde Vda de Ramonal proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested,
Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of the having the probate
denied. No witness need be present in the execution of the holographic will. And the rule requiring
the production of three witnesses is merely permissive. What the law deems essential is that
the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry,
for the state is as much interested in the proponent that the true intention of the testator be carried
into effect. And because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a partys failure to offer expert evidence, until and unless
the court expresses dissatisfaction with the testimony of the lay witnesses.[10]
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify
the signature of the deceased in the voters affidavit, which was not even produced as it was no
longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how
did Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other Q. From where?
witnesses definitely and in no uncertain terms testified that the handwriting and signature in the A. From the land rentals and commercial buildings at Pabayo-Gomez streets.[12]
holographic will were those of the testator herself.
xxx
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the Q. Who sometime accompany her?
handwriting and signature therein, and allowed the will to probate.
A. I sometimes accompany her
Hence, this petition.
Q. In collecting rentals does she issue receipts?
The petitioners raise the following issues:
A. Yes, sir.[13]
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied
upon by the respondent Court of Appeals, was applicable to the case. xxx

(2) Whether or not the Court of Appeals erred in holding that private respondents had Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one
been able to present credible evidence to prove that the date, text, and signature on of the receipts which she issued to them?
the holographic will were written entirely in the hand of the testatrix.
A. Yes, sir.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal. Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs.
Binanay?
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a contested A. Matilde vda. De Ramonal.
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
Q. Why do you say that that is a signature of Matilde vda. De Ramonal?
genuine signature of the testator.
A. I am familiar with her signature.
We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a mandatory order. We have ruled that shall in a statute Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept
commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that records of the accounts of her tenants?
the presumption is that the word shall, when used in a statute is mandatory. [11]
A. Yes, sir.
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims
to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and Q. Why do you say so?
the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator. A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

So, we believe that the paramount consideration in the present petition is to determine the true Q. How is this record of accounts made? How is this reflected?
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to
establish the true intent of the testator. A. In handwritten.[14]

It will be noted that not all the witnesses presented by the respondents testified explicitly that xxx
they were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of court, Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale
Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No.
which you said what else did you do to acquire familiarity of the signature of Matilde Vda
427 before said court. He was not presented to declare explicitly that the signature appearing in the De Ramonal?
holographic was that of the deceased.
A. Posting records.

Q. Aside from that?

 A. Carrying letters. A. I presented it to the fiscal.

Q. Letters of whom? Q. For what purpose?

A. Matilde A. Just to seek advice.

Q. To whom? Q. Advice of what?

[15]
A. To her creditors. A. About the will.[18]

xxx In her testimony it was also evident that Ms. Binanay kept the fact about the will from
petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of
Q. You testified that at the time of her death she left a will. I am showing to you a document with keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda. de
its title tugon is this the document you are referring to? Ramonal.
A. Yes, sir. In the testimony of Ms. Binanay, the following were established:
Q. Showing to you this exhibit S, there is that handwritten tugon, whose handwriting is Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
this?
A. Yes, sir.
A. My aunt.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to
Q. Why do you say this is the handwriting of your aunt? her building to collect rentals, is that correct?
A. Because I am familiar with her signature.[16] A. Yes, sir.[19]
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she xxx
either mailed or gave to her tenants. She did not declare that she saw the deceased sign a
document or write a note. Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are
retracings in the word Vda.?
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will
was not found in the personal belongings of the deceased but was in the possession of Ms. A. Yes, a little. The letter L is continuous.
Binanay. She testified that:
Q. And also in Matilde the letter L is continued to letter D?
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno
vda de Ramonal left a will you said, yes? A. Yes, sir.

A. Yes, sir. Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued
towards letter D.
Q. Who was in possession of that will?
A. Yes, sir.
A. I.
Q. And there is a retracing in the word Vda.?
Q. Since when did you have the possession of the will?
A. Yes, sir.[20]
A. It was in my mothers possession.
xxx
Q. So, it was not in your possession?
Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you
A. Sorry, yes. identified a document marked as Exhibit R. This is dated January 8,1978 which is only
about eight months from August 30,1978. Do you notice that the signature Matilde Vda de
Q. And when did you come into possession since as you said this was originally in the Ramonal is beautifully written and legible?
possession of your mother?
A. Yes, sir the handwriting shows that she was very exhausted.
A. 1985.[17]
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly
xxx and she was agile. Now, you said she was exhausted?
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and A. In writing.
therefore you have that in your possession?
Q. How did you know that she was exhausted when you were not present and you just tried to
A. It was not given to me by my mother, I took that in the aparador when she died. explain yourself out because of the apparent inconsistencies?
Q. After taking that document you kept it with you? A. That was I think. (sic)
 Q. Now, you already observed this signature dated 1978, the same year as the alleged xxx
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy
and the signature was written on a fluid movement. x x x And in fact , the name Eufemia Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
R. Patigas here refers to one of the petitioners? legitimate children?

A. Yes, sir. A. As far as I know they have no legitimate children.[25]

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in xxx
the alleged holographic will marked as Exhibit X but in the handwriting themselves, here
Q. You said after becoming a lawyer you practice your profession? Where?
you will notice the hesitancy and tremors, do you notice that?

A. Yes, sir.[21] A. Here in Cagayan de Oro City.

Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for
the period of 22 years. Could you tell the court the services if any which you rendered to
Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is
that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court before. [26]
xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit
N of the estate of Justo Ramonal and there appears a signature over the type written word
Matilde vda de Ramonal, whose signature is this?

A. I used to be her personal driver. A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde
Vda de Ramonal? A. This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]
A. Yes, sir. xxx
Q. How come that you acquired familiarity? Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the
A. Because I lived with her since birth.[22] other assistance wherein you were rendering professional service to the deceased Matilde
Vda de Ramonal?
xxx
A. I can not remember if I have assisted her in other matters but if there are documents to show
Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30, 1978 there is that I have assisted then I can recall.[28]
a signature here below item No. 1, will you tell this court whose signature is this?
xxx
A. Yes, sir, that is her signature.
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this document, Fiscal
Q. Why do you say that is her signature? Waga and tell the court whether you are familiar with the handwriting contained in that
document marked as exhibit S?
A. I am familiar with her signature.[23]
A. I am not familiar with the handwriting.
So, the only reason that Evangeline can give as to why she was familiar with the handwriting
of the deceased was because she lived with her since birth. She never declared that she saw the Q. This one, Matilde Vda de Ramonal, whose signature is this?
deceased write a note or sign a document.
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
Q. Do you know Matilde Vda de Ramonal? court whose signature is this?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am A. Well, that is similar to that signature appearing in the project of partition.
related to the husband by consanguinity.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court
Q. Can you tell the name of the husband? whose signature is that?

A. The late husband is Justo Ramonal.[24] A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
 Q. Why do you say that? No costs.

A. Because there is a similarity in the way it is being written. SO ORDERED.

Q. How about this signature in item no. 4, can you tell the court whose signature is this?

A. The same is true with the signature in item no. 4. It seems that they are similar.[29]

xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signature because it is similar to the
signature of the project of partition which you have made?

A. That is true.[30]

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,[31] ruling that the requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,[32] we said 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 guaranty their truth and authenticity. Therefore, the laws
on this 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.

However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay,
she revealed that the will was in her possession as early as 1985, or five years before the death of
the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance at
comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked
Ms. Binanay to compare the documents which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased
expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of the
disposition is not readable. There were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, [33] and the signatures
in several documents such as the application letter for pasture permit dated December 30,
1980,[34] and a letter dated June 16, 1978,[35]the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting by
the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered
remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of
their opposition to the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa
City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and
disposing mind and memory, do hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance
with the rights of said Church, and that my executrix hereinafter named provide and erect at the
expose of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance,
that the holographic Will contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of the Civil Code
reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation
for examination. The NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of the decedent,
Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be
admitted to probate although the alterations and/or insertions or additions
above-mentioned were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends that the
oppositors are estopped to assert the provision of Art. 814 on the ground that
they themselves agreed thru their counsel to submit the Document to the NBI
FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it
impliedly understood, that the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad
K. Kalaw, the Court will deny the admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should
be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa
gave an Identical commentary when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that the entire
Will is voided or revoked for the simple reason that nothing remains in the Will after that which could
remain valid. To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
Civil Code was derived: person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
no declara la nulidad de un testamento olografo que contenga palabras
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
tachadas, enmendadas o entre renglones no salvadas por el testador bajo su
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
determine las condiciones necesarias para la validez del testamento olografo,
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva
her intestate estate.
del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art.
26 de la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre
que no se salven en la forma prevenida, paro no el documento que las
contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de Separate Opinions
purez escrituraria, sin trascendencia alguna(l).
TEEHANKEE, J., concurring:
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo
fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien de modo substancial la I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
express voluntad del testador manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara nulo un testamento instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
olografo por no estar salvada por el testador la enmienda del guarismo ultimo testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
del año en que fue extendido3(Emphasis ours). person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
September 3, 1973, is hereby affirmed in toto. No costs. "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
SO ORDERED.
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur. substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.
Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
G.R. No. 122880 April 12, 2006 Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa
lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang
FELIX AZUELA, Petitioner,
lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari
vs.
ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
CASTILLO, Respondents.
pagkakaloob kong ito ay walang pasubali’t at kondiciones;

DECISION
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
TINGA, J.:
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to
(Sgd.)
the due execution of this document, the Court is provided the opportunity to assert a few important
EUGENIA E. IGSOLO
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
(Tagapagmana)
Civil Code.

PATUNAY NG MGA SAKSI

A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
sufficient to deny probate. A notarial will with all three defects is just aching for judicial nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
rejection. lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the EUGENIA E. IGSOLO
due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of address: 500 San Diego St.
notarial wills — that they be acknowledged before a notary public by the testator and the witnesses. Sampaloc, Manila Res. Cert. No. A-7717-37
A notarial will executed with indifference to these two codal provisions opens itself to nagging Issued at Manila on March 10, 1981.
questions as to its legitimacy.
QUIRINO AGRAVA
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) address: 1228-Int. 3, Kahilum
of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Pandacan, Manila Res. Cert. No. A-458365
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the Issued at Manila on Jan. 21, 1981
decedent.
LAMBERTO C. LEAÑO
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full: address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
HULING HABILIN NI EUGENIA E. IGSOLO

JUANITO ESTRERA
SA NGALAN NG MAYKAPAL, AMEN:
address: City Court Compound,
City of Manila Res. Cert. No. A574829
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam Issued at Manila on March 2, 1981.
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking
huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at

(Sgd.)
patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
PETRONIO Y. BAUTISTA
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages
of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as
the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo claimed that the will
is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioner’s right to occupy the properties of the decedent. 3 It also
asserted that contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance
with law. She pointed out that decedent’s signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments are among the central matters to
this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect
to the formalities in the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments
that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of
a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification
and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered correlatively in letters placed
on upper part of each page and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first page contains the entire text of
the testamentary dispositions, and the second page contains the last portion of the attestation clause
and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the
will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the
second page, which contains only the last portion of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages
used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial compliance rule."11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we
replicate in full.
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 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 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 witnesses, it shall be interpreted to them.
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.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause
to state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted
for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation clause to state the number of pages
contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in the margin, a matter attended with much
greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." 17 It was further
observed that "it cannot be denied that the x x x requirement affords additional security against the
danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of
pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel
Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not
state the number of pages used in the will, however, the same was found in the last part of the body
of the Will:
"x x x
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 will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 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." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the
Will states the number of pages used in the:
"x x x
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 will 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" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the
Will. The will does not even contain any notarial acknowledgment wherein the number of pages of
the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of
the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from
the philosophy that governed these two cases. Article 809 of the Civil Code states: "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 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "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. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills."24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "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."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution
of the attestation clause in wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction.28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x 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
these 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.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other, 30 the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission 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."31 Thus, a failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s presence should be considered
a fatal flaw since the attestation is the only textual guarantee of compliance. 32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. 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.33 The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills.34 Compliance with these requirements, however picayune in impression, affords the
public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the fruition of the
testator’s incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists of their averments before the
notary public.
Cagro v. Cagro36 is material on this point. As in this case, "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."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
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. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the will
be "attested and subscribed by [the instrumental witnesses]." The respective intents behind these
two classes of signature are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing forms part
of the will. On the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses’
undertakings in the clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation There are two other requirements under Article 805 which were not fully satisfied by the will in
clause itself, but not the left-hand margin of the page containing such clause. Without diminishing question. We need not discuss them at length, as they are no longer material to the
the value of the instrumental witnesses’ signatures on each and every page, the fact must be noted
that it is the attestation clause which contains the utterances reduced into writing of the testamentary
disposition of this case. The provision requires that the testator and the instrumental witnesses sign
witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to
each and every page of the will on the left margin, except the last; and that all the pages shall be
state the number of pages used upon which the will is written; the fact that the testator had signed
numbered correlatively in letters placed on the upper part of each page. In this case, the decedent,
the will and every page thereof; and that they witnessed and signed the will and all the pages thereof
unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature
in the presence of the testator and of one another. The only proof in the will that the witnesses have
appearing at the so-called "logical end"44 of the will on its first page. Also, the will itself is not
stated these elemental facts would be their signatures on the attestation clause.
numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is
a line of thought that has disabused the notion that these two requirements be construed as
Thus, the subject will cannot be considered to have been validly attested to by the instrumental mandatory.45Taken in isolation, these omissions, by themselves, may not be sufficient to deny
witnesses, as they failed to sign the attestation clause. probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The
requirement under Article 806 that "every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The importance of this requirement is All told, the string of mortal defects which the will in question suffers from makes the probate denial
highlighted by the fact that it had been segregated from the other requirements under Article 805 inexorable.
and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case
is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as
WHEREFORE, the petition is DENIED. Costs against petitioner.
of equivalent import.

SO ORDERED.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no manner of
contemplation can those words be construed as an acknowledgment. An acknowledgment is the act
of one who has executed a deed in going before some competent officer or court and declaring it to
be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is his/her own free
act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the
document was subscribed and sworn to by the executor. 42 Ordinarily, the language of
the jurat should avow that the document was subscribed and sworn before the notary public, while in
this case, the notary public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the decedent and the instrumental
witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An acknowledgement
is not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing
for the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A
notarial will that is not acknowledged before a notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and sworn to before a notary public.