ARTICLE 805 add nothing.
We cannot assume that the
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-
appellants.
AVANCEÑA, J.:
On September 19, 1917, the Court of First
Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this
decision the opponent's appealed.
Said document, duly probated as Ana
Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the
direction of the testatrix) and by three
witnesses. The following sheet contains only
the attestation clause duly signed at the bottom
by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the
testatrix and the three witnesses, nor
numbered by letters; and these omissions,
according to appellants' contention, are defects
whereby the probate of the will should have
been denied. We are of the opinion that the will
was duly admitted to probate.
In requiring that each and every sheet of
the will should also be signed on the left
margin by the testator and three witnesses in
the presence of each other, Act No. 2645
(which is the one applicable in the case)
evidently has for its object (referring to the
body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the
testator's dispositions. But when these
dispositions are wholly written on only one
sheet signed at the bottom by the testator and
three witnesses (as the instant case), their
signatures on the left margin of said sheet
would be completely purposeless. In requiring
this signature on the margin, the statute took
into consideration, undoubtedly, the case of a
will written on several sheets and must have
referred to the sheets which the testator and
the witnesses do not have to sign at the
bottom. A different interpretation would assume
that the statute requires that this sheet, already
signed at the bottom, be signed twice. We
cannot attribute to the statute such an
intention. As these signatures must be written
by the testator and the witnesses in the
presence of each other, it appears that, if the
signatures at the bottom of the sheet
guaranties its authenticity, another signature
on its left margin would be unneccessary; and
if they do not guaranty, same signatures,
affixed on another part of same sheet, would
statute regards of such importance the place
where the testator and the witnesses must sign
on the sheet that it would consider that their
signatures written on the bottom do not
guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
In requiring that each and every page of
a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is
to know whether any sheet of the will has been
removed. But, when all the dispositive parts of
a will are written on one sheet only, the object
of the statute disappears because the removal
of this single sheet, although unnumbered,
cannot be hidden.
What has been said is also applicable to
the attestation clause. Wherefore, without
considering whether or not this clause is an
essential part of the will, we hold that in the
one accompanying the will in question, the
signatures of the testatrix and of the three
witnesses on the margin and the numbering of
the pages of the sheet are formalities not
required by the statute. Moreover, referring
specially to the signature of the testatrix, we
can add that same is not necessary in the
attestation clause because this, as its name
implies, appertains only to the witnesses and
not to the testator since the latter does not
attest, but executes, the will.
Synthesizing our opinion, we hold that in
a will consisting of two sheets the first of which
contains all the testamentary dispositions and
is signed at the bottom by the testator and
three witnesses and the second contains only
the attestation clause and is signed also at the
bottom by the three witnesses, it is not
necessary that both sheets be further signed
on their margins by the testator and the
witnesses, or be paged.
The object of the solemnities
surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid
substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted
in such a way as to attain these primordal
ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of
the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustative of the
testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is
1
alleged the records do not show that the
Page
testarix knew the dialect in which the will is
written. But the circumstance appearing in the
will itself that same was executed in the city of
Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to
presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the
judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.

2
Page
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE
OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE
ICASIANO, oppositors-appellants.
REYES, J.B.L., J.:
Appeal from an order of the Court of First
Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits
"A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the
person named therein as such.
This special proceeding was begun on October
2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner
Celso Icasiano as executor thereof.
The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof
to be published for three (3) successive weeks,
previous to the time appointed, in the
newspaper "Manila chronicle", and also caused
personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a
daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to
have herself appointed as a special
administrator, to which proponent objected.
Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust
Company as special administrator.1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son
of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to
the probate of the alleged will.
On March 19, 1959, the petitioner proponent
commenced the introduction of his evidence;
but on June 1, 1959, he filed a motion for the
admission of an amended and supplemental
petition, alleging that the decedent left a will
executed in duplicate with all the legal
requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"),
which he allegedly found only on or about May
26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the
admission of the amended and supplemental
petition, but by order of July 20, 1959, the court
admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented
their respective evidence, and after several
hearings the court issued the order admitting
the will and its duplicate to probate. From this
order, the oppositors appealed directly to this
Court, the amount involved being over
P200,000.00, on the ground that the same is
contrary to law and the evidence.
The evidence presented for the petitioner is to
the effect that Josefa Villacorte died in the City
of Manila on September 12, 1958; that on June
2, 1956, the late Josefa Villacorte executed a
last will and testament in duplicate at the house
of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and
attested by three instrumental witnesses,
namely: attorneys Justo P. Torres, Jr. and Jose
V. Natividad, and Mr. Vinicio B. Diy; that the
will was acknowledged by the testatrix and by
the said three instrumental witnesses on the
same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and
that the will was actually prepared by attorney
Fermin Samson, who was also present during
the execution and signing of the decedent's
last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano and a little girl. Of the said
three instrumental witnesses to the execution
of the decedent's last will and testament,
attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both
testified as to the due execution and
authenticity of the said will. So did the Notary
Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and
also attorneys Fermin Samson, who actually
prepared the document. The latter also testified
upon cross examination that he prepared one
original and two copies of Josefa Villacorte last
will and testament at his house in Baliuag,
Bulacan, but he brought only one original and
one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will,
which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the
end and in every page, it does not contain the
signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the
amended and supplemental petition and
marked as Exhibit "A-1" is signed by the
testatrix and her three attesting witnesses in
each and every page.
The testimony presented by the proponents of
the will tends to show that the original of the
will and its duplicate were subscribed at the
end and on the left margin of each and every
page thereof by the testatrix herself and
attested and subscribed by the three
mentioned witnesses in the testatrix's presence
and in that of one another as witnesses (except
3
for the missing signature of attorney Natividad
Page
on page three (3) of the original); that pages of
the original and duplicate of said will were duly
numbered; that the attestation clause thereof
contains all the facts required by law to be
recited therein and is signed by the aforesaid
attesting witnesses; that the will is written in the
language known to and spoken by the testatrix
that the attestation clause is in a language also
known to and spoken by the witnesses; that
the will was executed on one single occasion in
duplicate copies; and that both the original and
the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila
on the same date June 2, 1956.
Witness Natividad who testified on his failure to
sign page three (3) of the original, admits that
he may have lifted two pages instead of one
when he signed the same, but affirmed that
page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert
testimony to the effect that the signatures of
the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on
the same occasion as the original, and further
aver that granting that the documents were
genuine, they were executed through mistake
and with undue influence and pressure
because the testatrix was deceived into
adopting as her last will and testament the
wishes of those who will stand to benefit from
the provisions of the will, as may be inferred
from the facts and circumstances surrounding
the execution of the will and the provisions and
dispositions thereof, whereby proponents-
appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased
and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to
look for other properties not mentioned in the
will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of
free disposal.
We have examined the record and are
satisfied, as the trial court was, that the
testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of
the will spontaneously, on the same in the
presence of the three attesting witnesses, the
notary public who acknowledged the will; and
Atty. Samson, who actually prepared the
documents; that the will and its duplicate were
executed in Tagalog, a language known to and
spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty.
Fermin Samson, together before they were
actually signed; that the attestation clause is
also in a language known to and spoken by the
testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that
the signatures of the testatrix appearing in the
duplicate original were not written by the same
had which wrote the signatures in the original
will leaves us unconvinced, not merely
because it is directly contradicted by expert
Martin Ramos for the proponents, but
principally because of the paucity of the
standards used by him to support the
conclusion that the differences between the
standard and questioned signatures are
beyond the writer's range of normal scriptural
variation. The expert has, in fact, used as
standards only three other signatures of the
testatrix besides those affixed to the original of
the testament (Exh. A); and we feel that with so
few standards the expert's opinion and the
signatures in the duplicate could not be those
of the testatrix becomes extremely hazardous.
This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly
that the are radical differences that would
justify the charge of forgery, taking into account
the advanced age of the testatrix, the evident
variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right
the original. These, factors were not discussed
by the expert.
Similarly, the alleged slight variance in
blueness of the ink in the admitted and
questioned signatures does not appear
reliable, considering the standard and
challenged writings were affixed to different
kinds of paper, with different surfaces and
reflecting power. On the whole, therefore, we
do not find the testimony of the oppositor's
expert sufficient to overcome that of the notary
and the two instrumental witnesses, Torres and
Natividad (Dr. Diy being in the United States
during the trial, did not testify).
Nor do we find adequate evidence of fraud or
undue influence. The fact that some heirs are
more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs.
Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
Phil. 216). Diversity of apportionment is the
usual reason for making a testament;
otherwise, the decedent might as well die
intestate. The testamentary dispositions that
the heirs should not inquire into other property
and that they should respect the distribution
made in the will, under penalty of forfeiture of
their shares in the free part do not suffice to
prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged
litigation which, as shown by ordinary
experience, often results in a sizeable portion
of the estate being diverted into the hands of
non-heirs and speculators. Whether these
clauses are valid or not is a matter to be
litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals
in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
4
and undue influence are mutually repugnant
Page
and exclude each other; their joining as original because it lacked one signature in its
grounds for opposing probate shows absence third page, it is easily discerned that
of definite evidence against the validity of the oppositors-appellants run here into a dilemma;
will. if the original is defective and invalid, then in
On the question of law, we hold that the law there is no other will but the duly signed
inadvertent failure of one witness to affix his carbon duplicate (Exh. A-1), and the same is
signature to one page of a testament, due to probatable. If the original is valid and can be
the simultaneous lifting of two pages in the probated, then the objection to the signed
course of signing, is not per se sufficient to duplicate need not be considered, being
justify denial of probate. Impossibility of superfluous and irrelevant. At any rate, said
substitution of this page is assured not only the duplicate, Exhibit A-1, serves to prove that the
fact that the testatrix and two other witnesses omission of one signature in the third page of
did sign the defective page, but also by its the original testament was inadvertent and not
bearing the coincident imprint of the seal of the intentional.
notary public before whom the testament was That the carbon duplicate, Exhibit A-1, was
ratified by testatrix and all three witnesses. The produced and admitted without a new
law should not be so strictly and literally publication does not affect the jurisdiction of
interpreted as to penalize the testatrix on the probate court, already conferred by the
account of the inadvertence of a single witness original publication of the petition for probate.
over whose conduct she had no control, where The amended petition did not substantially alter
the purpose of the law to guarantee the identity the one first filed, but merely supplemented it
of the testament and its component pages is by disclosing the existence of the duplicate,
sufficiently attained, no intentional or deliberate and no showing is made that new interests
deviation existed, and the evidence on record were involved (the contents of Exhibit A and A-
attests to the full observance of the statutory 1 are admittedly identical); and appellants were
requisites. Otherwise, as stated in Vda. de Gil. duly notified of the proposed amendment. It is
vs. Murciano, 49 Off. Gaz. 1459, at 1479 nowhere proved or claimed that the
(decision on reconsideration) "witnesses may amendment deprived the appellants of any
sabotage the will by muddling or bungling it or substantial right, and we see no error in
the attestation clause". admitting the amended petition.
That the failure of witness Natividad to sign IN VIEW OF THE FOREGOING, the decision
page three (3) was entirely through pure appealed from is affirmed, with costs against
oversight is shown by his own testimony as appellants.
well as by the duplicate copy of the will, which
bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public
likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court
departs from a strict and literal application of
the statutory requirements, where the purposes
of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court
has held that a testament, with the only page
signed at its foot by testator and witnesses, but
not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476);
and that despite the requirement for the
correlative lettering of the pages of a will, the
failure to make the first page either by letters or
numbers is not a fatal defect (Lopez vs. Liboro,
81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal
requirements in order to guard against fraud
and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the
original of the will is in existence and available,
the duplicate (Exh. A-1) is not entitled to
5

probate. Since they opposed probate of

Page
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET
AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case
of Faustino Cabacungan vs. Pedro Barut and
another, No. 6284,1just decided by this court,
wherein there was an application for the
probate of an alleged last will and testament of
the same person the probate of whose will is
involved in this suit.
This appeal arises out of an application on the
part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is
alleged in the petition of the probate that Maria
Salomon died on the 7th day of November,
1908, in the pueblo of Sinait, Ilocos Sur,
leaving a last will and testament bearing date
March 2, 1907. Severo Agayan, Timotea
Inoselda, Catalino Ragasa, and A. M. Jimenez
are alleged to have been witnesses to the
execution thereof. By the terms of said will
Pedro Barut received the larger part of
decedent's property.
The original will appears on page 3 of the
record and is in the Ilocano dialect. Its
translation into Spanish appears at page 11.
After disposing of her property the testatrix
revoked all former wills by her made. She also
stated in said will that being unable to read or
write, the same had been read to her by
Ciriaco Concepcion and Timotea Inoselda and
that she had instructed Severo Agayan to sign
her name to it as testatrix.
The probate of the will was contested and
opposed by a number of the relatives of the
deceased on various grounds, among them
that a later will had been executed by the
deceased. The will referred to as being a later
will is the one involved in case No. 6284
already referred to. Proceeding for the probate
of this later will were pending at the time. The
evidence of the proponents and of the
opponents was taken by the court in both
cases for the purpose of considering them
together.
In the case before us the learned probate court
found that the will was not entitled to probate
upon the sole ground that the handwriting of
the person who it is alleged signed the name of
the testatrix to the will for and on her behalf
looked more like the handwriting of one of the
other witnesses to the will than that of the
person whose handwriting it was alleged to be.
We do not believe that the mere dissimilarity in
writing thus mentioned by the court is sufficient
to overcome the uncontradicted testimony of all
the witnesses to the will that the signature of
the testatrix was written by Severo Agayan at
her request and in her presence and in the
presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix
provided it is written at her request and in her
presence and in the presence of all the
witnesses to the execution of the will.
The court seems , by inference at least, to
have had in mind that under the law relating to
the execution of a will it is necessary that the
person who signs the name of the testatrix
must afterwards sign his own name; and that,
in view of the fact that, in the case at bar, the
name signed below that of the testatrix as the
person who signed her name, being, from its
appearance, not the same handwriting as that
constituting the name of the testatrix, the will is
accordingly invalid, such fact indicating that the
person who signed the name of the testatrix
failed to sign his own. We do not believe that
this contention can be sustained. Section 618
of the Code of Civil Procedure reads as
follows:
No will, except as provided in the
preceding section, shall be valid to pass
any estate, real or personal, nor charge
or effect the same, unless it be in writing
and signed by the testator, or by the
testator's name written by some other
person in his presence, and by his
expenses direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of each. . . .
This is the important part of the section under
the terms of which the court holds that the
person who signs the name of the testator for
him must also sign his own name The
remainder of the section reads:
The attestation shall state the fact that
the testator signed the will, or caused it
to be signed by some other person, at
his express direction, in the presence of
three witnesses, and that they attested
and subscribed it in his presence and in
the presence of each other. But the
absence of such form of attestation shall
not render the will invalid if it is proven
that the will was in fact signed and
attested as in this section provided.
From these provisions it is entirely clear that,
with respect to the validity of the will, it is
unimportant whether the person who writes the
name of the testatrix signs his own or not. The
important thing is that it clearly appears that
the name of the testatrix was signed at her
express direction in the presence of three
witnesses and that they attested and
subscribed it in her presence and in the
6
presence of each other. That is all the statute
Page
requires. It may be wise as a practical matter
that the one who signs the testator's name
signs also his own; but that it is not essential to
the validity of the will. Whether one parson or
another signed the name of the testatrix in this
case is absolutely unimportant so far as the
validity of her will is concerned. The plain
wording of the statute shows that the
requirement laid down by the trial court, if it did
lay down, is absolutely unnecessary under the
law; and the reasons underlying the provisions
of the statute relating to the execution of wills
do not in any sense require such a provision.
From the standpoint of language it is an
impossibility to draw from the words of the law
the inference that the persons who signs the
name of the testator must sign his own name
also. The law requires only three witnesses to
a will, not four.
Nor is such requirement found in any other
branch of the law. The name of a person who
is unable to write may be signed by another by
express direction to any instrument known to
the law. There is no necessity whatever, so far
as the validity of the instrument is concerned,
for the person who writes the name of the
principal in the document to sign his own name
also. As a matter of policy it may be wise that
he do so inasmuch as it would give such
intimation as would enable a person proving
the document to demonstrate more readily the
execution by the principal. But as a matter of
essential validity of the document, it is
unnecessary. The main thing to be established
in the execution of the will is the signature of
the testator. If that signature is proved, whether
it be written by himself or by another at his
request, it is none the less valid, and the fact of
such signature can be proved as perfectly and
as completely when the person signing for the
principal omits to sign his own name as it can
when he actually signs. To hold a will invalid
for the lack of the signature of the person
signing the name of the principal is, in the
particular case, a complete abrogation of the
law of wills, as it rejects and destroys a will
which the statute expressly declares is valid.
There have been cited three cases which it is
alleged are in opposition to the doctrine which
we have herein laid down. They are Ex
parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas (4 Phil. Rep., 700), and
Guison vs.Concepcion (5 Phil. Rep., 551). Not
one of these cases is in point. The headnote in
the case last above stated gives an indication
of what all of cases are and the question
involved in each one of them. It says:
The testatrix was not able to sign it for
her. Instead of writing her name he
wrote his own upon the will.Held, That
the will was not duly executed.
All of the above cases are precisely of this
character. Every one of them was a case in
which the person who signed the will for the
testator wrote his own name to the will instead
of writing that of the testator, so that the
testator's name nowhere appeared attached to
the will as the one who executed it. The case
of Ex parte Arcenas contains the following
paragraph:
Where a testator does not know, or is
unable for any reason, to sign the will
himself, it shall be signed in the
following manner: "John Doe, by the
testator, Richard Roe;" or in this form:
"By the testator. John Doe, Richard
Roe." All this must be written by the
witness signing at the request of the
testator.
The only question for decision in that case, as
we have before stated, was presented by the
fact that the person who was authorized to sign
the name of the testator to the will actually
failed to sign such name but instead signed his
own thereto. The decision in that case related
only to that question.
Aside from the presentation of an alleged
subsequent will the contestants in this case
have set forth no reason whatever why the will
involved in the present litigation should not be
probated. The due and legal execution of the
will by the testatrix is clearly established by the
proofs in this case. Upon the facts, therefore,
the will must be probated. As to the defense of
a subsequent will, that is resolved in case No.
6284 of which we have already spoken. We
there held that said later will not the will of the
deceased.
The judgment of the probate court must be and
is hereby reversed and that court is directed to
enter an order in the usual form probating the
will involved in this litigation and to proceed
with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that
section 618 of the Code of Civil Procedure
does not expressly require that, when the
testator or testatrix is unable or does not know
how to sign, the person who, in the presence
and under the express direction of either of
them, writes in the name of the said testator or
testatrix must also sign his own name thereto,
it being sufficient for the validity of the will that
the said person so requested to sign the
testator or testatrix write the name of either in
his own handwriting.
Since this court began to decide cases with
7
regard to the form, conditions and validity of
Page
wills executed in accordance with the
provisions of the Code of Civil Procedure,
never has the specific point just above
mentioned been brought into question. Now for
the first time is affirmed in the majority opinion,
written by the learned and distinguished Hon.
Justice Moreland, that, not being required by
the said code, the signature of the name of the
person who, at the request of the testator or
testatrix, writes the name of either of the latter
to the will executed, is not necessary.
Various and considerable in number have been
the decisions rendered by this court in which,
as will be seen further on, upon applying the
said section 618 of Code of Civil Procedure
and requiring its observance in cases where
the testator or testatrix is unable or does not
know how to sign his or her name, expressly
prescribed the practical method of complying
with the provisions of the law on the subject.
Among these decisions several were written by
various justices of this court, some of whom
are no longer on this bench, as they have
ceased to hold such position.
Paragraph 2 of the syllabus of case No.
2002, Ex parte Delfin Santiago,1 concerning
the probate of a will, reads as follows:
Wills, authentication of . — Where a will
is not signed by a testator but by some
other person in his presence and by his
direction, such other person should affix
the name of the testator thereto, and it is
not sufficient that he sign his own name
for and instead of the name of the
testator.
Paragraph 1 of the syllabus of case No.
1708, Ex parte Arcenas,2 in the matter of the
probate of a will, states:
1. Wills, requisites of; Civil Code, article
repealed. — Article 695 of the Civil
Procedure; consequently where a
testator is unable to sign his name, the
person signing at his request must write
at the bottom of the will the full name of
the testator in the latter's presence, and
by his express direction, and then sign
his own name in full.
In the syllabus of decision No. 2586, Tomas
Guison vs. Maria Concepcion,3 the following
statements appear:
Wills; inability to sign; signature by
another. — The testatrix was not able to
sign her name to the will, and she
requested another person to sign it for
her. Held, That the will was not duly
executed. (Following Ex parte Arcenas
et al., No. 1708, August 24, 1905; Ex
parte Arcenas et al., No. 1708, August
24, 1905; Ex parte Santiago, No. 2002,
August 18, 1905.)
The following syllabus precedes decision No.
3907:4
Execution of wills. — Where it appears
in a will that the testator has stated that
by reason of his inability to sign his
name he requested one of the three
witnesses present to do so, and that as
a matter of fact, the said witness wrote
the name and surname of the testator
who, stating that the instrument
executed by him contained his last will,
put the sign of the cross between his
said name and surname, all of which
details are set forth in a note which the
witnesses forthwith subscribed in the
presence of the testator and of each
other, said will may be probated.
When the essential requisites of section
618 of the Code of Civil Procedure for
the execution and validity of a will have
been complied with, the fact that the
witness who was requested to sign the
name of the testator, omitted to state the
words 'by request of .......... the testator,'
when writing with his own hand the
name and surname of the said testator,
and the fact that said witness
subscribed his name together with the
other witnesses and not below the name
of the testator, does not constitute a
defect nor invalidate the said will.
The following statement appears in the
syllabus of case No. 4132, in the matter of the
will of Maria Siason:5
The recital of the name of the testator as
written below the will at his request
serves as a signature by a third person.
Moreover among the grounds given as a basis
for this same decision, the following appears:
In sustaining this form of signature, this
court does not intend to qualify the
decisions in Ex parte Santiago (4 Phil.
Rep., 692), Ex parte Arcenas, above
quoted, or in Abaya vs. Zalamero. In the
Arcenas case the court pointed out the
correct formula for a signature which
ought to be followed, but did not mean
to exclude any other for substantially
equivalent.
In the syllabus of decision No. 4454,6 Ex
parte Ondevilla et al., the following appears:
The testatrix was unable to sign her will
with her own hand and requested
another person to sign for her in her
presence. This the latter did, first writing
the name of the testatrix and signing his
own name below:Held, That the
signature of the testatrix so affixed is
sufficient and a will thus executed is
admissible to probate. (Ex
8
parte Arcenas, 4 Phil. Rep., 700.)
Page
The syllabus of decision No. 51497 sets forth
that:
The legality of a will is not affected by the
insertion, supposed to have been made
subsequently, of another name before that of
the testator when such name may be treated
as nonexistent without affecting its validity.
Among the conclusions contained in this last
decision the following is found:
Although the said words "For Simplicia
de los Santos" be considered as
inserted subsequently, which we neither
affirm nor deny, because a specific
determination either way is
unnecessary, in our opinion the
signature for the testatrix placed outside
of the body of the will contains the name
of the testatrix as if she signed the will,
and also the signature of the witness
who, at her request, wrote the name of
the testatrix and signed for her, affirming
the truth of this fact, attested by the
other witnesses then present. And this
fully complies with the provisions of
section 618 of the Act.
It is true that in none of the decisions above
quoted was the rule established that the
person who, at the request of the testator or
testatrix, signed the latter's or the former's
name and surname to the will must affix his
own signature; but it no less true that, in
prescribing the method in which the provisions
of the said section 618 to be complied with, it
was stated that, in order that a will so executed
might be admitted to probate, it was an
indispensable requisite that the person
requested to sign in place of the testator or
testatrix, should write the latter's or the former's
name and surname at the foot of the will in the
presence and under the direction of either, as
the case might be, and should afterwards sign
the instrument with his own name and
surname.
The statement that the person who writes the
name and surname of the testator or testatrix
at the foot of the will should likewise affix his
own signature thereto, name and surname,
though it be considered to be neither a rule nor
a requisite necessary to follow for the
admission of the will to probate, yet it is
unquestionable that, in inserting this last
above-mentioned detail in the aforesaid
decisions, it was deemed to be a complement
and integral part of the required conditions for
the fulfillment of the provisions of the law.
It is undisputable that the latter does not
require the said subscription and signature of
the person requested to affix to the will the
name of the testator or testatrix who is not able
to sign; but by stating in the decisions
hereinabove quoted that the name and
surname of the said person should be affixed
by him, no act prohibited by law was
recommended or suggested, nor may such a
detail be understood to be contrary or opposed
to the plain provisions thereof.
In the preceding decision itself, it is recognized
to be convenient and even prudent to require
that the person requested to write the name of
the testator or testatrix in the will also sign the
instrument with his own name and surname.
This statement induces us to believe that, in
behalf of the inhabitants of this country and for
sake of an upright administration of justice, it
should be maintained that such a signature
must appear in the will, since no harm could
accrue to anyone thereby and, on the contrary,
it would serve as a guarantee of the certainty
of the act performed and also might eliminate
some possible cause of controversy between
the interested parties.
The undersigned feels it his duty to admit that,
though convinced of the complete repeal of
article 695 of the Civil Code and, while he
conceded that, in the examination and
qualification of a will for the purpose of its
probate, one has but to abide by the provisions
of said section 618 of the Code of Civil
Procedure, the sole law applicable in the
matter, yet, perhaps imbued with the strongly
impelled by a traditional conception of the laws
which he has known since youth, relative to the
form of execution of testaments, he believed it
to be a vary natural and common sense
requisite that the signature, with his own name
and surname, of the person requested to write
in the will the name and surname of the
testator or testatrix should form a part of the
provisions of the aforementioned section 618.
He undoubtedly thought, perhaps mistakenly,
that such a requisite of the signature of the
person before referred to — a requisite
deemed to be convenient and prudent in the
majority opinion — formed a part of the
provisions of the law, since the latter contains
nothing that prohibits it. The aforementioned
different decisions were drawn up in the form in
which they appear, and signed without dissent
by all the justices of the court on various dates.
None of them hesitated to sign the decisions,
notwithstanding that it was expressly held
therein that the person above mentioned
should, besides writing in the will the name and
surname of the testator or testatrix, also sign
the said instrument with his own name and
surname.
Without being understood to criticize the
provision contained in the said section 618 of
the Code of Civil Procedure it will not be
superfluous to mention that the system
adopted in this section is the same as was in
9
vogue under the former laws that governed in
Page
these Islands, with respect to witnesses who
were not able or did not know how to sign their
testimony given in criminal or civil cases, in
which event any person at all might write the
name and surname of the witness who was
unable or did not know how to sign, at the foot
of his deposition, where a cross was then
drawn, and, this done, it was considered that
the instrument had been signed by the witness,
though it is true that all these formalities were
performed before the judge and the clerk or
secretary of the court, which thereupon
certified that such procedure was had in
accordance with the law.
The difference is that in the will, pursuant to
section 618 of the Code of Civil Procedure, the
person who writes the name and surname of
the testator or testatrix does so by the order
and express direction of the one or of the
other, and this fact must be recorded in the will;
but in the matter of the signature of a
deposition, the witness, who could not or did
not know how to sign, did not need to
designate anyone to write the deponent's name
and surname, and in practice the witness
merely made a cross beside his name and
surname, written by whomever it be.
With regard to the execution of wills in
accordance with the provisions of previous
statutes, among them those of the Civil Code,
the person or witness requested by the testator
or testatrix who was not able or did not know
how to sign, authenticated the will by signing it
with his own name and surname, preceded by
the words "at the request of the testator or
testatrix." Paragraph 2 of article 695 of the Civil
Code contains the following provisions bearing
on the subject:
Should the testator declare that he does
not know how, or is not able to sign, one
of the attesting witnesses or another
person shall do so for him at his
request, the notary certifying thereto.
This shall be done if any one of the
witnesses can not sign.
So that, prior to the enforcement in this country
in 1901 of the Code of Civil procedure
prescribed by the old laws with respect to the
signing of a will by a testator or testatrix who
did not know how or who could not sign,
consisted in that the person appointed and
requested by the testator or testatrix to sign in
his or her stead, such fact being recorded in
the will, merely affixed at the bottom of the will
and after the words "at the request of the
testator," his own name, surname and
paragraph.
It is not at all strange that the attorneys of this
country, imbued with and inspired by these
legal provisions, which it may said, are
traditional to them in the ideas they have
formed of the existing laws in the matter of
procedure in compliance therewith as regards
the execution and signing of a will, should have
believed that, after the name and surname of
the testator or testatrix had been written at the
foot of the will, the person who signed the
instrument in the manner mentioned should
likewise sign the same with his own name and
surname.
If in various decisions it has been indicated that
the person who, under the express direction of
the testator or testatrix, wrote the latter's or the
former's name and surname, should also sign
the will with his own name and surname, and
since this suggestion is not opposed or
contrary to the law, the undersigned is of
opinion that it ought not to be modified or
amended, but that, on the contrary, it should be
maintained as a requisite established by the
jurisprudence of this court, inasmuch as such a
requisite is not contrary to law, to public order,
or to good custom, is in consonance with a
tradition of this country, does not prejudice the
testator nor those interested in an inheritance,
and, on the contrary, constitutes another
guarantee of the truth and authenticity of the
letters with which the name and surname of the
testator of testatrix are written, in accordance
with his or her desire as expressed in the will.
Even though the requisites referred to were not
recognized in jurisprudence and were
unsupported by any legal doctrine whatever,
yet, since it is in harmony with the juridical
usages and customs observed in this country,
it ought, in the humble opinion of the writer, to
be maintained for the benefit of the inhabitants
of the Islands and for the sake of a good
administration of justice, because it is not a
question of a dangerous innovation or of one
prejudicial to the public good, but a matter of
the observance of a convenient, if not a
necessary detail, introduced by the
jurisprudence of the courts and which in the
present case has filed a vacancy left by the
positive written law.
The foregoing considerations, which perhaps
have not the support of better premises, but in
the opinion of the undersigned, are conducive
to the realization of the purposes of justice,
have impelled him to believe that the
proposition should be enforced that the witness
requested or invited by the testator or testatrix
to write his or her name to the will, should also
subscribed the instrument by signing thereto
his own name and surname; and therefore,
with the proper finding in this sense, and
reversal of the judgment appealed from, that
the court below should be ordered to proceed
with the probate of the will of the decedent,
10
Maria Salomon, in accordance with the law.
Page
G.R. No. L-20475 March 19, 1924
In re will of TAN DIUCO, deceased.
MAMERTA BASE, petitioner-appellant.
C.K. Langleon for petitioner and appellant.
ARAULLO, C.J.:
On March 3, 1921, Mamerta Base instituted
this proceeding in the Court of First Instance of
Leyte for the probate of the will, Exhibit A,
executed, according to her, by the Chinaman
Tan Diuco, a resident of the municipality of
Malitbog of said province, who died on
December 8, 1920. That court denied the
probate of the will on November 2, 1922, and
the petitioner brought the case on appeal to
this court, alleging that the lower court erred in
holding that said will was not signed by three
instrumental witnesses and in not allowing it to
probate.
After a hearing on the petition, the Court of
First Instance entered the order appealed from,
in which it is found that said will was executed
with all the solemnities prescribed by Act No.
2645, except that it was not signed by three
instrumental witnesses beside the signature of
the testator and before the attestation clause,
and this fact is the ground upon which the
petition was denied.
The document in question, Exhibit A, appears
to have been signed by Simplicio Sala by order
of the testator, whose name is before the said
signature, by reason of the latter's incapacity
on account of his weakness and the trembling
of his hand, the testator also stating that he
directed said Simplicio Sala to sign it in his
name and in the presence of three witnesses
who also signed with him at the bottom of said
document, and on the left margin of each of its
three pages correlatively numbered in letters
by Sala in the name of the testator Tan Diuco
and by the witnesses therein mentioned,
named Pablo Maturan, Ladislao Fenomeno,
and Enrique Peñaredondo. After the signature
of the testator, Tan Diuco by Simplicio Sala,
the following paragraph appears:
We, the undersigned witnesses to the
forgoing will, do hereby state that the
testator signed this will and each of its
sheets in the presence of all and each of
us, and we and each of us likewise did
sign this will and all of its sheets in the
presence of the testator and each of us,
witnesses.
"TAN DIUCO
By "SIMPLICIO SALA
"LADISLAO FENOMENO
"PABLO MATURAN
"ENRIQUE PEÑAREDONDO"
Section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, provides, indeed,
among the necessary requirements before a
will can be probated, that it be attested and
signed by three or more credible witnesses in
the presence of the testator and of each other.
And said section, as amended, further provides
as follows:
* * * The testator or the person
requested by him to write his name and
the instrumental witnesses of the will,
shall also sign, as aforesaid, each and
every page thereof, on the left margin,
and said pages shall be numbered
correlatively in letters placed on the
upper part of each sheet. The
attestation shall state the number of
sheets or pages used, upon which the
will is written, and that fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter witnessed and
signed the will and all pages thereof in
the presence of the testator and of each
other.
Instrumental witness, as defined by Escriche in
his Diccionario Razonado de Legislacion y
Jurisprudencia, volume 4, page 1115, is one
who takes part in the execution of an
instrument or writing.
At present and under the laws now in force,
particularly Act No. 2645 amendatory to said
section 618 of the Code of Civil Procedure,
when a will is to be executed, the testator
draws or writes it personally or through another
person and signs it also personally, or if he is
physically incapacitated, as in the instant case,
through another person who may or may not
be the one who prepared or wrote the will, that
is, the document constituting the testator's last
will and testament. The will having thus been
prepared and before it is signed by the testator
or the person acting in his stead, or the one
directed by him to sign it in his name, in which
case the name of the testator is written before
that of the signer, as above stated, in order that
said document may have the character of a
valid will, the testator gathers three or more
credible witnesses and tells them that the
contents of said document is his will, without
informing them of its contents, and then the
testator, or the person directed by him to do so,
signs it in the presence of the testator and of
each other, and the testator or the person
acting in his stead, as well as the three
witnesses sign on the left margin of each page
or sheet, which must be numbered correlatively
in letters on the upper part of the page. These
witnesses are the witnesses, referred to in the
aforesaid law as instrumental witnesses, for
the simple reason that they took part in the
11
execution of an instrument or document known
Page
as will, their participation being limited to the given assures such ends, any other
acts aforementioned. interpretation whatsoever, that adds nothing
In dealing with attestation, said section 618 of but demands more requisites entirely
the Code of Civil Procedure, as amended by unnecessary, useless and frustative of the
Act No. 2645, does not say that said witnesses testator's last will, must be disregarded;" which
must be different from those who signed the doctrine must be applied in this case, in view of
attestation clause, for in the first part of said the facts herein mentioned and what has been
section, after speaking of the signature of the above demonstrated.
testator or the person signing in his place, it For all of the foregoing, the order appealed
adds, "and attested and subscribed by three or from is reversed, and the document, Exhibit A,
more credible witnesses in the presence of the presented by the proponent as the last will and
testator and of each other," from which it testament of the deceased Tan Diuco is
clearly follows that the same witnesses who admitted to probate, without special finding as
signed on the left margin of each page of the to costs of both instances. So ordered.
document presented by the testator to them as
his will, must be the ones who should sign the
attestation clause, inasmuch as they alone can
certify the facts to be stated in said clause, for
having taken a direct part therein, as they saw
the testator sign the will, or the person
requested by him to sign all the sheets of the
will, that is, the document constituting his last
will and testament, and affirm that it was
signed under his express direction in the
presence of said witnesses and that all the
sheets thereof had also been signed by them
in the presence of said testator and of each of
them, as stated in the attestation clause of the
will of the deceased Tan Diuco, with the other
details appropriate in said clause.
Besides, as may be seen, the said three
witnesses who signed the attestation clause,
did so also on the left margin and beside the
signature of the testator or of Simplicio Sala
who signed by order of the latter, and if
account is taken of the fact that these
witnesses are "instrumental" witnesses, as
above demonstrated, and they have made
reference to their own signatures, as well as
that of the testator and of the person who
signed by the latter's order below the
attestation clause, it is evident that in the
instant case, it is merely a matter of technicality
devoid of any importance as to the probate of
the will that said witnesses are called
instrumental witnesses, as if they were
different from those who have to sign the
attestation clause, for all of them are but the
same witnesses; and, as this court held in the
case of Abangan vs. Abangan (40 Phil., 476),
"The object of the solemnities surrounding the
execution of wills is to close the door against
bad faith and fraud, to avoid substitution of
wills and testaments and to guarantee their
truth and authenticity. Therefore the laws on
this subject should be interpreted in such a
way as to attain these primordial ends. But, on
the other hand, also one must not lose sight of
the fact that it is not the object of the law to
12

restrain and curtail the exercise of the right to

make a will. So when a interpretation already
Page
[G.R. No. 9150. March 31, 1915. ] declined to admit the instrument to probate as
the last will and testament of the decedent. We
MARIANO LEANO, Petitioner-Appellant, v. are of opinion. however, that the evidence of
ARCADIO LEAÑO, objector-appellee. record satisfactorily establishes the execution
of that instrument as and for her last will and
Vicente Llanes for Appellant. testament in the manner and form prescribed
by law.
Severo Hernando for Appellee.
The judgment entered in the court below
SYLLABUS should therefore be reversed, without costs in
1. WILLS; SIGNATURE BY MARK. — The this instance, and the record remanded to the
right of a testatrix to sign her will by mark, court below, where judgment will be entered
executed animo testandi, sustained. admitting the instrument in question to probate
in accordance with the prayer of the petitioner.
2. ID., ID. — The placing of a cross, by a So ordered.
testatrix, opposite her name attached to an
instrument purporting to be her last will and
testament is a sufficient compliance with the
requirements of section 618 of the Code of
Civil Procedure as to the form and manner in
which such instruments should be signed.

DECISION

CARSON, J. :

The evidence of record satisfactorily discloses

that Cristina Valdes, deceased, placed her
cross against her name attached by some
other person to the instrument offered for
probate which purports to be her last will and
testament, in the presence of the three
witnesses whose names are attached to the
attesting clause, and that they attested and
subscribed the instrument in her presence and
in the presence of each other.

We are of the opinion that the placing of the

cross opposite her name at the conclusion of
the instrument was a sufficient compliance with
the requirements of section 618 of the Code of
Civil Procedure, which prescribes that except
where wills are signed by some other person
than the testator in the manner and form
therein indicated, a valid will must be signed by
the testator. The right of a testator to sign his
will by mark, executed animo testandi, has
been uniformly sustained by the courts of last
resort of the United States in construing
statutory provisions prescribing the mode of
execution of wills in language identical with, or
substantially similar to that found in section 618
of our code, which was taken from section
2349 of the Code of Vermont. (Page on Wills,
par. 173, and the cases there cited in support
of the doctrine just announced.)
13

The trial judge was of contrary opinion, and

Page
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO
MERCADO, deceased. ROSARIO
GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto
for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico
Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court
of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is
written in the Ilocano dialect and contains the
following attestation clause:
We, the undersigned, by these presents
to declare that the foregoing testament
of Antero Mercado was signed by
himself and also by us below his name
and of this attestation clause and that of
the left margin of the three pages
thereof. Page three the continuation of
this attestation clause; this will is written
in Ilocano dialect which is spoken and
understood by the testator, and it bears
the corresponding number in letter
which compose of three pages and all
them were signed in the presence of the
testator and witnesses, and the
witnesses in the presence of the testator
and all and each and every one of us
witnesses.
In testimony, whereof, we sign this
statement, this the third day of January,
one thousand nine hundred forty three,
(1943) A.D.
(Sgd.) NUMERIANO (Sgd.) "ROSENDA
EVANGELISTA CORTES
(Sgd.) BIBIANA
ILLEGIBLE
The will appears to have been signed by Atty.
Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo
del testator" and the name of Florentino Javier.
Antero Mercado is alleged to have written a
cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court
of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the
will was signed on all the left margins of the
three pages and at the end of the will by Atty.
Florentino Javier at the express request of the
testator in the presence of the testator and
each and every one of the witnesses; (2) to
certify that after the signing of the name of the
testator by Atty. Javier at the former's request
said testator has written a cross at the end of
his name and on the left margin of the three
pages of which the will consists and at the end
thereof; (3) to certify that the three witnesses
signed the will in all the pages thereon in the
presence of the testator and of each other.
In our opinion, the attestation clause is fatally
defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write
the testator's name under his express direction,
as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is
appealing by way of certiorari from the decision
of the Court of Appeals) argues, however, that
there is no need for such recital because the
cross written by the testator after his name is a
sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's
theory is that the cross is as much a signature
as a thumbmark, the latter having been held
sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross
appearing on the will is the usual signature of
Antero Mercado or even one of the ways by
which he signed his name. After mature
reflection, we are not prepared to liken the
mere sign of the cross to a thumbmark, and the
reason is obvious. The cross cannot and does
not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for
us to determine there is a sufficient recital in
the attestation clause as to the signing of the
will by the testator in the presence of the
witnesses, and by the latter in the presence of
the testator and of each other.
Wherefore, the appealed decision is hereby
affirmed, with against the petitioner. So
ordered.
14
Page
G.R. No. L-15153 August 31, 1960
In the Matter of the summary settlement of
the Estate of the deceased
ANACLETA ABELLANA. LUCIO
BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-
appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First
Instance of Zamboanga City admitting to
probate the will of one Anacleta Abellana. The
case was originally appealed to the Court of
Appeals where the following assignment of
error is made:
The appellants respectfully submit that
the Trial Court erred in holding that the
supposed testament, Exh. "A", was
signed in accordance with law; and in
admitting the will to probate.
In view of the fact that the appeal involves a
question of law the said court has certified the
case to us.
The facts as found by the trial court are as
follows:
It appears on record that the last Will
and Testament (Exhibit "A"), which is
sought to be probated, is written in the
Spanish language and consists of two
(2) typewritten pages (pages 4 and 5 of
the record) double space. The first page
is signed by Juan Bello and under his
name appears typewritten "Por la
testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951,
Ciudad de Zamboanga', and on the
second page appears the signature of
three (3) instrumental witnesses Blas
Sebastian, Faustino Macaso and Rafael
Ignacio, at the bottom of which appears
the signature of T. de los Santos and
below his signature is his official
designation as the notary public who
notarized the said testament. On the
first page on the left margin of the said
instrument also appear the signatures of
the instrumental witnesses. On the
second page, which is the last page of
said last Will and Testament, also
appears the signature of the three (3)
instrumental witnesses and on that
second page on the left margin appears
the signature of Juan Bello under whose
name appears handwritten the following
phrase, "Por la Testadora Anacleta
Abellana'. The will is duly acknowledged
before Notary Public Attorney Timoteo
de los Santos. (Emphasis supplied)
The appeal squarely presents the following
issue: Does the signature of Dr. Juan A. Abello
above the typewritten statement "Por la
Testadora Anacleta Abellana . . ., Ciudad de
Zamboanga," comply with the requirements of
law prescribing the manner in which a will shall
be executed?
The present law, Article 805 of the Civil Code,
in part provides as follows:
Every will, other than a holographic will,
must be subscribed at the end thereof
by the testator himself or by the
testator's name written by some other
person in his presence, and by his
express direction, and attested and
subscribed by three or more credible
witness in the presence of the testator
and of one another. (Emphasis
supplied.)
The clause "must be subscribed at the end
thereof by the testator himself or by the
testator's name written by some other person
in his presence and by his express direction,"
is practically the same as the provisions of
Section 618 of the Code of Civil Procedure (Act
No. 190) which reads as follows:
No will, except as provided in the
preceding section shall be valid to pass
any estate, real or personal, nor charge
or affect the same, unless it be in writing
and signed by the testator, or by the
testator's name written by some other
person in his presence, and by his
express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of each other. . . . (Emphasis
supplied).
Note that the old law as well as the new require
that the testator himself sign the will, or if he
cannot do so, the testator's name must be
written by some other person in his presence
and by his express direction. Applying this
provision this Court said in the case of Ex
Parte Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted
section 618 of the Code of Civil
Procedure that where the testator does
not know how, or is unable, to sign, it
will not be sufficient that one of the
attesting witnesses signs the will at the
testator's request, the notary certifying
thereto as provided in Article 695 of the
Civil Code, which, in this respect, was
modified by section 618 above referred
to, but it is necessary that the testator's
name be written by the person signing in
his stead in the place where he could
have signed if he knew how or was able
15
to do so, and this in the testator's
presence and by his express direction;
Page
 so that a will signed in a manner
different than that prescribed by law
shall not be valid and will not be allowed
to be probated.
Where a testator does not know how, or
is unable for any reason, to sign the will
himself, it shall be signed in the
following manner:
John Doe by the testator, Richard Doe;
or in this form: "By the testator, John
Doe, Richard Doe." All this must be
written by the witness signing at the
request of the testator.
Therefore, under the law now in force,
the witness Naval A. Vidal should have
written at the bottom of the will the full
name of the testator and his own name
in one forms given above. He did not do
so, however, and this is failure to
comply with the law is a substantial
defect which affects the validity of the
will and precludes its allowance,
notwithstanding the fact that no one
appeared to oppose it.
The same ruling was laid down in the case
of Cuison vs. Concepcion, 5 Phil., 552. In the
case of Barut vs. Cabacungan, 21 Phil., 461,
we held that the important thing is that it clearly
appears that the name of the testatrix was
signed at her express direction; it is
unimportant whether the person who writes the
name of the testatrix signs his own or not.
Cases of the same import areas follows: (Ex
Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs.Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix,
Anacleta Abellana, does not appear written
under the will by said Abellana herself, or by
Dr. Juan Abello. There is, therefore, a failure to
comply with the express requirement in the law
that the testator must himself sign the will, or
that his name be affixed thereto by some other
person in his presence and by his express
direction.
It appearing that the above provision of the law
has not been complied with, we are
constrained to declare that the said will of the
deceased Anacleta Abellana may not be
admitted to probate.
WHEREFORE, the decision appealed from is
hereby set aside and the petition for the
probate of the will denied. With costs against
petitioner.
16
Page
G.R. No. L-3907 March 12, 1908
ROMAN ABAYA, petitioner-appellant,
vs.
DONATA ZALAMERO, respondent-appellee.
L. Joaquin for appellant.
Escueta and Lim for appellee.
TORRES, J.:
On the 6th of August, Roman Abaya filed a
petition with the Court of First Instance of La
Laguna, for the allowance of the will executed
by Juan Zalamero, a resident of Pagsanhan, in
said province, on the 29th of October, 1905,
and produced in court the said will, which was
written in Tagalog dialect. Donata Zalamero
opposed the petition, alleging that the will had
been executed under pressure and unlawful
and improper influence on the part of those
who were to benefit thereby, and that it had not
been executed and signed in accordance with
the provisions of section 618 of the Code of
Civil Procedure. A day was appointed for the
hearing and in the course of the proceedings
the witnesses offered by both parties were
examined; on the 10th of January, 1907, the
court refused to admit the will of said Juan
Zalamero, as requested by Roman Abaya;
Abaya appealed from the decision and moved
for a new trial which motion has not been
finally acted upon by the court; for this reason
the petitioner, now before this court, still insists
thereon for the effects of the appeal which he
had interposed, and has submitted a certified
copy of the proceedings to which the
assignment of errors presented by him refers.
Two points are presented. The first is, that
Juan Zalamero, while in life, executed his will
on the 29th of October, 1905, under lawful
pressure and influence exercised by those who
were thereby benefited; and second, that the
said will was not executed and signed in
accordance with the provisions of section 618
of the Code of Civil Procedure.
After an examination of the facts alleged and
the evidence adduced by both parties, and
considering the case according to the rules of
common sense and sound criticism, it must
necessarily be admitted that the weight and
preponderance of the evidence prove in a
conclusive manner the authenticity and
genuineness of the said will as the real and
true expression of the will of the testator, Juan
Zalamero, and for this reason the first point
should have been decided by the court below
in a negative sense.
It was not expressly pretended that the said will
should be disallowed under the provisions of
section 634 of the Code of Civil Procedure,
either because the testator was insane or
otherwise mentally incapable to execute such
instrument at the time of its execution, or
because it was procured by undue and
improper pressure and influence on the part of
the beneficiaries; nor even if such request had
been made, could the nullity of the said will
have been judicially declared in view of the
lack of satisfactory proof of the presence of
such circumstances. Therefore, the court, in
order to disallow the petition, had to disregard
them and rest the decision upon the allegation
that the will was not executed in accordance
with the provisions of section 618 of the Code
of Civil Procedure.
Notwithstanding the reasons stated in the
judgment appealed from, it appears that the
will in question was executed with the
requirements established by the law in force,
and that, therefore, the decision upon the
second point should be against the opponents
to the petition.
It is shown by the evidence, and by the will
itself, that for the reasons set forth by the
testator and at his own request, one of the
witnesses to the will, Mariano Zaguirre, wrote
with his own hand the name and surname of
Juan Zalamero, the testator, and his presence,
and that the latter put a cross between them
and a note stating that what had been written
before the name and surname of the said Juan
Zalamero, with the cross placed at the foot
thereof, was his testament and contained his
last will as stated by him when he directed the
execution thereof in the presence of the three
witnesses who subscribed it in his presence,
and in the presence of each other.
It is true that the witness Mariano Zaguirre,
who was requested by the testator to write his
name and surname at the end of his will, did
not affix his own signature immediately below
the name and surname of Juan Zalamero and
below the cross placed by the latter with the
words "by request of the testator Juan
Zalamero;" but in the said will are clearly stated
the reason why it was not signed by the
testator himself as also the request he made to
the witness Zaguirre, and a repetition thereof
was not necessary; further, that this same
witness, upon being requested, wrote with his
own hand the name and surname of the
testator, who afterwards placed the cross
between them, stating that it was his
statement, all of which was written immediately
after the said name and surname of the
testator and the cross made by him, and the
same was subscribed by the three witnesses in
the manner provided by law.
The essential requisites prescribed by the
above-mentioned section 618 of the law have
been complied with, namely, that three
witnesses were present at the execution of the
will of Juan Zalamero at the date mentioned
17
therein; that they heard his statement that the
said instrument, written and drawn up under
Page
his direction, contained his last will; that they
saw and witnessed when, at the express
request of the testator, and under his direction,
the witness, Mariano Zaguirre, wrote at the foot
of the will the name and surname of Juan
Zalamero, and when the latter put the cross
between his written name and surname, each
of the witnesses subscribing it at the time and
in the presence of each other.
For the reasons hereinbefore set forth it is our
opinion that the judgment appealed from
should be reversed and that it be declared, as
we now do, that the will executed by the late
Juan Zalamero while in life, under date of the
29th of October, 1905, was executed in
accordance with the law, and that therefore it
should be duly admitted in order that it may
produce all consequent legal effects, and it is
so ordered without any special ruling as to
costs.

18
Page
G.R. No. 1641 January 19, 1906
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-
appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the
last will and testament of Macario Jaboneta,
deceased, because the lower court was of the
opinion from the evidence adduced at the
hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto
in the presence of Isabelo Jena, another of the
witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which
appears of record on this particular point, being
a part of the testimony of the said Isabeo Jena:
Q. 1641 Who first signed the will?
A. 1641 I signed it first, and
afterwards Aniceto and the others.
Q. 1641 Who were those others
to whom you have just referred?
A. 1641 After the witness Aniceto
signed the will I left the house, because
I was in a hurry, and at the moment
when I was leaving I saw Julio Javellana
with the pen in his hand in position
ready to sign (en actitud de firmar). I
believe he signed, because he was at
the table. . . .
Q. 1641 State positively whether
Julio Javellana did or did not sign as a
witness to the will.
A. 1641 I can't say certainly,
because as I was leaving the house I
saw Julio Javellana with the pen in his
hand, in position ready to sign. I believe
he signed.
Q. 1641 Why do you believe Julio
Javellana signed?
A. 1641 Because he had the pen
in his hand, which was resting on the
paper, though I did not actually see him
sign.
Q. 1641 Explain this contradictory
statement.
A. 1641 After I signed I asked
permission to leave, because I was in a
hurry, and while I was leaving Julio had
already taken the pen in his hand, as it
appeared, for the purpose of signing,
and when I was near the door I
happened to turn my face and I saw that
he had his hand with the pen resting on
the will, moving it as if for the purpose of
signing.
Q. 1641 State positively whether
Julio moved his hand with the pen as if
for the purpose of signing, or whether he
was signing
A. I believe he was signing.
The truth and accuracy of the testimony of this
witness does not seem to have been
questioned by any of the parties to the
proceedings, but the court, nevertheless, found
the following facts:
On the 26th day of December, 1901,
Macario Jaboneta executed under the
following circumstances the document in
question, which has been presented for
probate as his will:
Being in the house of Arcadio Jarandilla,
in Jaro, in this province, he ordered that
the document in question be written,
and calling Julio Javellana, Aniceto
Jalbuena, and Isabelo Jena as
witnesses, executed the said document
as his will. They were all together, and
were in the room where Jaboneta was,
and were present when he signed the
document, Isabelo Jena signing
afterwards as a witness, at his request,
and in his presence and in the presence
of the other two witnesses. Aniceto
Jalbuena then signed as a witness in
the presence of the testator, and in the
presence of the other two persons who
signed as witnesses. At that moment
Isabelo Jena, being in a hurry to leave,
took his hat and left the room. As he
was leaving the house Julio Javellana
took the pen in his hand and put himself
in position to sign the will as a witness,
but did not sign in the presence of
Isabelo Jena; but nevertheless, after
Jena had left the room the said Julio
Javellana signed as a witness in the
presence of the testator and of the
witness Aniceto Jalbuena.
We can not agree with so much of the above
finding of facts as holds that the signature of
Javellana was not signed in the presence of
Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure.
The fact that Jena was still in the room when
he saw Javellana moving his hand and pen in
the act of affixing his signature to the will, taken
together with the testimony of the remaining
witnesses which shows that Javellana did in
fact there and then sign his name to the will,
convinces us that the signature was affixed in
the presence of Jena. The fact that he was in
the act of leaving, and that his back was turned
while a portion of the name of the witness was
being written, is of no importance. He, with the
other witnesses and the testator, had
assembled for the purpose of executing the
19
testament, and were together in the same
room for that purpose, and at the moment
Page
when the witness Javellana signed the
document he was actually and physically
present and in such position with relation to
Javellana that he could see everything which
took place by merely casting his eyes in the
proper direction, and without any physical
obstruction to prevent his doing so, therefore
we are of opinion that the document was in fact
signed before he finally left the room.
The purpose of a statutory requirement
that the witness sign in the presence of
the testator is said to be that the testator
may have ocular evidence of the identity
of the instrument subscribed by the
witness and himself, and the generally
accepted tests of presence are vision
and mental apprehension. (See Am. &
Eng. Enc. of Law, vol. 30, p. 599, and
cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328)
it was held that it is sufficient if the witnesses
are together for the purpose of witnessing the
execution of the will, and in a position to
actually see the testator write, if they choose to
do so; and there are many cases which lay
down the rule that the true test of vision is not
whether the testator actually saw the witness
sign, but whether he might have seen him sign,
considering his mental and physical condition
and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and
the tests of presence as between the testator
and the witnesses are equally applicable in
determining whether the witnesses signed the
instrument in the presence of each other, as
required by the statute, and applying them to
the facts proven in these proceedings we are
of opinion that the statutory requisites as to the
execution of the instrument were complied
with, and that the lower court erred in denying
probate to the will on the ground stated in the
ruling appealed from.
We are of opinion from the evidence of record
that the instrument propounded in these
proceedings was satisfactorily proven to be the
last will and testament of Macario Jaboneta,
deceased, and that it should therefore be
admitted to probate.
The judgment of the trial court is reversed,
without especial condemnation of costs, and
after twenty days the record will be returned to
the court form whence it came, where the
proper orders will be entered in conformance
herewith. So ordered.
20
Page
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for
appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in
this case as to the due execution of the
instrument propounded as a will in the court
below, is whether one of the subscribing
witnesses was present in the small room where
it was executed at the time when the testator
and the other subscribing witnesses attached
their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large
room connecting with the smaller room by a
doorway, across which was hung a curtain
which made it impossible for one in the outside
room to see the testator and the other
subscribing witnesses in the act of attaching
their signatures to the instrument.
A majority of the members of the court is of
opinion that this subscribing witness was in the
small room with the testator and the other
subscribing witnesses at the time when they
attached their signatures to the instrument, and
this finding, of course, disposes of the appeal
and necessitates the affirmance of the decree
admitting the document to probate as the last
will and testament of the deceased.
The trial judge does not appear to have
considered the determination of this question
of fact of vital importance in the determination
of this case, as he was of opinion that under
the doctrine laid down in the case of Jaboneta
vs. Gustilo (5 Phil. Rep., 541) the alleged fact
that one of the subscribing witnesses was in
the outer room when the testator and the other
describing witnesses signed the instrument in
the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution
of the will. But we are unanimously of opinion
that had this subscribing witness been proven
to have been in the outer room at the time
when the testator and the other subscribing
witnesses attached their signatures to the
instrument in the inner room, it would have
been invalid as a will, the attaching of those
signatures under circumstances not being
done "in the presence" of the witness in the
outer room. This because the line of vision
from this witness to the testator and the other
subscribing witnesses would necessarily have
been impeded by the curtain separating the
inner from the outer one "at the moment of
inscription of each signature."
In the case just cited, on which the trial court
relied, we held that:
The true test of presence of the testator
and the witnesses in the execution of a
will is not whether they actually saw
each other sign, but whether they might
have been seen each other sign, had
they chosen to do so, considering their
mental and physical condition and
position with relation to each other at the
moment of inscription of each signature.
But it is especially to be noted that the position
of the parties with relation to each other at the
moment of the subscription of each signature,
must be such that they may see each other
sign if they choose to do so. This, of course,
does not mean that the testator and the
subscribing witnesses may be held to have
executed the instrument in the presence of
each other if it appears that they would not
have been able to see each other sign at that
moment, without changing their relative
positions or existing conditions. The evidence
in the case relied upon by the trial judge
discloses that "at the moment when the
witness Javellana signed the document he was
actually and physically present and in such
position with relation to Jaboneta that he could
see everything that took place by merely
casting his eyes in the proper direction
and without any physical obstruction to prevent
his doing so." And the decision merely laid
down the doctrine that the question whether
the testator and the subscribing witnesses to
an alleged will sign the instrument in the
presence of each other does not depend upon
proof of the fact that their eyes were actually
cast upon the paper at the moment of its
subscription by each of them, but that at that
moment existing conditions and their position
with relation to each other were such that by
merely casting the eyes in the proper direction
they could have seen each other sign. To
extend the doctrine further would open the
door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the
purpose for which this particular condition is
prescribed in the code as one of the requisites
in the execution of a will.
The decree entered by the court below
admitting the instrument propounded therein to
probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of
this instance against the appellant.
21
Page
EN BANC
[G.R. No. L-23225. February 27, 1971.]
IN THE MATTER OF THE PETITION TO
PROBATE OF THE WILL OF DIGNA
MARAVILLA, HERMINIO MARAVILLA,
petitioner-appellant, and ADELINA SAJO,
legatee-appellant, v. PEDRO MARAVILLA,
ASUNCION MARAVILLA and REGINA
MARAVILLA, oppositors-appellees,
CONCEPCION KOHLHAAS and ROSE
MARY KOHLHAAS, intervenors.
Felino A. Garcia for legatee-appellant.
Salonga, Ordoñez, Yap, Sicat & Associates
and Paredes, Poblador, Cruz & Nazareno
forPetitioner-Appellant.
Jose Gutierrez David, Placido C. Ramos,
Augurio Abeto, Alex Mirasol and Alex
Umadhay, for oppositors-appellees.
Jose M. Luison for intervenors.
DECISION
REYES, J.B.L., J.:
These are appeals (before Republic Act 5440)
from the decision of the Court of First Instance
of Negros Occidental, in its Special Proceeding
No. 4977, denying the probate of the will of the
deceased, Digna Maravilla. These appeals
were brought to the Court of Appeals, but said
court certified the same to this Supreme Court
on 26 May 1964, in accord with the latter’s
prior decision in Fernandez, etc., Et. Al. v.
Maravilla, L-18799, 31 March 1964, 1 which
settled the question of appellate jurisdiction in
favor of the Supreme Court over that of the
Court of Appeals, on the appeal from the
appointment of a special co-administrator in
the same Special Proceeding No. 4977 in view
of the value of the estate.
Appellant Herminio Maravilla, probate
petitioner and husband of the decedent, died
on 16 July 1966, after the case was submitted
for decision. Upon motion for intervention filed
by Concepcion Maravilla Kohlhaas and Rose
Mary Kohlhaas, this Supreme Court allowed
their intervention on 24 July 1967, upon
showing that their interest as substitute heirs
was vested definitely upon the death of
Herminio Maravilla, and that said movants for
intervention merely adopt the pleadings and
briefs filed in behalf of the deceased Herminio
Maravilla so that the intervention will not delay
the disposition of the case. 2
Appellees Pedro, 3 Asuncion and Regina, all
surnamed "Maravilla," who are allegedly the
brother and sisters of the deceased Digna
Maravilla and oppositors to the probate, had
moved to require the P. C. Laboratory to
submit explanations of the photographs of the
will and the signatures thereon previously filed,
4 but this Court, considering that such
explanation would amount to new evidence not
heard at the trial, denied the motion on 3
August 1967. 5
Herminio Maravilla’s petition for probate was
opposed by the appellees in an amended
opposition filed in the course of the trial in the
court below and admitted without objection.
The opposition alleged the following
grounds:jgc:chanrobles.com.ph
"a) That the deceased, Digna Maravilla, the
alleged testatrix and the instrumental
witnesses did not sign the alleged will, each
and every page thereof, in the presence of
each other;
"b) That the deceased, Digna Maravilla, the
alleged testatrix, affixed her signature to her
alleged will under undue and improper
pressure and influence and/or duress brought
to bear upon her by the petitioner, for his own
personal benefit and advantage and that of his
nieces, Adelina Sajo and Rose Marie Kohlhaas
and his half-sister Conchita Maravilla
Kohlhaas;
"c) That the deceased, Digna Maravilla, at the
time she affixed her signature to her alleged
will was not of sound and disposing mind;
"d) That the alleged will, now being offered for
probate had already been revoked by the
deceased, Digna Maravilla." 6
After trial, the court below rendered judgment,
holding as unsubstantiated the last three (3)
grounds above-enumerated, but sustaining the
first, that is, that the will was not executed in
accordance with Section 618 of Act 190, and,
therefore, denied the probate of the will.
The petitioner and one Adelina Sajro, who was
named a devisee under the questioned will,
appealed the judgment, as aforesaid, assigning
errors of fact and law. The oppositors-
appellees did not appeal but counter-assigned
22
errors their brief.
Page
There is no controversy that the late Digna
Maravilla died in Manapla, Negros Occidental,
on 12 August 1958, leaving an extensive
estate. Prior to her death, she was a resident
of Saravia, same province. It is, likewise,
undisputed that, at the time of the probate
proceedings, only one (1) (Aquilino Mansueto)
of the three (3) attesting witnesses to the will
had survived, the two (2) others (Timoteo
Hernaez and Mariano Buenaflor) having died
previously.
The will submitted for probate, Exhibit "A,"
which is typewritten in the Spanish language,
purports to have been executed in Manila on
the 7th day of October, 1944; it consists of five
(5) pages, including the page on which the
attestation clause was completed. The
purported signatures of the testatrix appear at
the logical end of the will on page four and at
the left margin of all the other pages. The
attestation clause reads as
follows:jgc:chanrobles.com.ph
"CLAUSULA DE ATESTIGUAMIENTO
"Nosotros, TIMOTEO HERNAEZ, AQUILINO
MANSUETO y MARIANO BUENAFLOR los
abajo firmantes todos mayores de edad y sin
impedimento alguno para ser testigo de este
testamento, certificamos y atestiguamos: Que
en la fecha y lugar arriba mencionados Da.
DIGNA MARAVILLA ha otorgado el presente
documento como su testamento y ultima
voluntad que consta de cinco paginas utiles
incluyendo esta pagina de atestiguamiento,
escrito a maquinilla en una sola cara de cada
hoja, todas paginadas correlativamente en
letras de puño y letra de la testadora, habiendo
dicha testadora, despues de leido el mismo en
nuestra presencia, firmado por triplicado al pie
de este testamento y al margen izquierdo de
cada una de las cinco paginas de que se
compone en presencia de todos y cada uno de
nosotros que tambien firmamos en el margen
izquierdo de cada pagina y al pie de este
atestiguamiento los unos en presencia de los
otros y todos en presencia de lo testadora,
quien en el acto del otorgamiento y firma de
este documento se halla en plena capacidad
intelectual, amenazada ni enganada par
otorgar y firmar este testamento.
"Asi lo atestiguamos y firmamos por triplicado
de nuestro puño y letra en Manila hoy a siete
de Octubre de mil novecientos cuarenta y
cuatro."cralaw virtua1aw library
At the bottom thereof appear the purported
signatures of Timoteo Hernaez, Aquilino
Mansueto and Mariano Buenaflor, attesting
witnesses. Their signatures appear also on the
left margin of all the five (5) pages. The paging
of the will is by handwritten words, such as
"Pagina Primera," "Pagina Segunda," etc.,
written at the top of each page. On the lower
half of the third page, before the name
"CONCEPCION P. MARAVILLA," is the
typewritten word "hermana," which was
crossed out, and over it was handwritten the
word "cuñada," bearing, at the left hereof, the
initials "D. M."cralaw virtua1aw library
After the legacies in favor of herein appellant
Adelina Sajo, a niece of Digna Maravilla, the
latter’s sister-in-law, Concepcion P. Maravilla
de Kohlhaas, and Concepcion’s daughter,
Rose Mary Kohlhaas, the will named appellant
Herminio Maravilla as universal heir and
executor. In case of the heir’s death, or if he
should not become heir for any reason, he is to
be substituted by the legatee Adelina Sajo in
one-half of the properties bequeathed, the
other half to pass collectively to legatees
Concepcion P. Maravilla and the daughter of
the latter, Rose Mary Kohlhaas. All previous
wills are declared revoked.
In view of the trial court’s decision of 8
February 1960 (Record on Appeal, pages 25-
51) refusing probate of the will, the instituted
heir, Herminio Maravilla, and the legatee,
Adelina Sajo, perfected their appeal, assigning
as errors the findings of the trial court that (a)
instrumental witness Aquilino Mansueto did not
actually see Digna Maravilla sign the will; (b)
that Digna Maravilla was not present when
Mansueto signed the will as witness; (c) that
Mansueto "most probably" did not see Mariano
Buenaflor sign as witness to the will; (d) the
testimony of attorney Manuel Villanueva on the
due execution of Digna Maravilla’s testament
was biased and not deserving of credit; and (e)
in refusing probate to the alleged will for not
having been executed with the requisites
prescribed by Section 618 of Act 190.
At the hearing before the court a quo, only one
of the three instrumental witnesses, Col. (ret.)
Aquilino Mansueto, appeared and testified,
inasmuch as the other two witnesses (Timoteo
Hernaez and Mariano Buenaflor) concededly
died prior to the trial of the case. Col.
Mansueto identified his own signature and
those of Dr. Timoteo Hernaez and of Digna
Maravilla, and asserted that the latter did sign
in the presence of all three witnesses and
attorney Villanueva; 7 that Hernaez signed in
his presence and in the presence of the other
witnesses and of Digna Maravilla and that
23
present at the signing were "Dr. Timoteo
Hernaez, Mr. Mariano Buenaflor, attorney
Page
Manuel Villanueva and both Herminio Maravilla
and Mrs. Digna Maravilla, (the testatrix) and
identified his signature and those of Digna and
Hernaez 8 although, subsequently, the witness
admitted that he could not remember very well
whether Mr. Maravilla was there at the time he
signed the will. The witness explained that he
could not remember some details because
fourteen years had elapsed, and when he
signed as a witness, he did not give it any
importance and because of the time he (Col.
Mansueto) was very worried because of
rumours that the Japanese Kempeitai would
arrest officers of the USAFFE who did not want
to collaborate. 9 Digna at his right, and Hernaez at the right of
Colonel Mansueto’s testimony was supported
by that of the husband of the testatrix,
Herminio Maravilla, and of attorney Manuel
Villanueva. Herminio Maravilla’s evidence is
that a week before 7 October 1944 his wife,
Digna Maravilla, told him of her desire to
"renew" her will because of the critical period in
Manila before the liberation; 10 he invited
Buenaflor, Hernaez and Mansueto to attest to
the will; 11 sent his messenger, Mariano
Buenaflor, to ask attorney Manuel Villanueva to
come to his house at Mabini, Ermita, Manila, in
order to prepare the will; 12 at his wife’s
request, he gave the list of properties to
Villanueva; 13 he knew that the will was
executed in the dining room while he remained
in the sala; 14 and Villanueva, Mansueto,
Hernaez and Buenaflor were in his house in
the morning of 7 October 1944 and sat with his
wife around the table in the dining room, with
Villanueva at one end, Digna beside him and
the witnesses facing each other; 15 and after
the signing they had lunch, at his invitation,
and when they were eating, petitioner Maravilla
saw the three (3) copies of the will on the
dining table. 16 However, he did not see there
sign. 17
Attorney Manuel Villanueva, as third witness
for the proponent asserted that he had been
the lawyer of the Maravillas; that 5 or 6 days
before 7 October 1944 he had been
summoned through Mariano Buenaflor to the
house of the Maravillas at 222 Mabini, Ermita,
Manila, and there met Digna who requested
him to draft a new will, revoking her old one, to
include as additional beneficiaries Adelina
Sajo, Concepcion Maravilla, and the latter’s
youngest daughter, Rose Mary Kohlhaas, who
lived with her (Digna) and whom she
considered as her real children, having cared
for them since childhood. Digna gave
Villanueva instructions concerning the will, and
handed him her old will and a handwritten list
of the certificates of title of her properties,
which list she asked and obtained from her
husband. Before leaving, Villanueva asked
Digna to look for three witnesses; their names
were furnished him two or three days later and
he sent word that the will could be executed on
7 October 1944 (as it actually was); on that day
he brought one original and 2 copies with him,
and handed them to Digna; she read the
document and while doing so the witnesses
Mansueto, Hernaez and Buenaflor came.
Villanueva talked with them and satisfied
himself that they were competent, whereupon
all proceeded to the dining room table.
Attorney Villanueva sat at the head thereof,
Digna; at his left was first Mansueto and then
Buenaflor. At the lawyer’s behest Digna
Maravilla read the will in the presence of the
witnesses; after reading she called his
attention to a clerical error on page 3, at the
second to the last line of paragraph 9, where
Concepcion Maravilla was designated as
"hermana" ; the word was cancelled by the
testatrix who wrote "cuñada" above the
cancelled word, and placed her initials "D. M."
beside it. She also wrote on top of each page
the words "Pagina primera," "Pagina Segunda"
and so on, upon Villanueva’s instructions, and
then Digna and the witnesses signed in the
presence of one another and of attorney
Villanueva. 18 The latter did not ask the
husband (Herminio) to join the group when the
will was executed, and Herminio remained
near the window in the sala. 19 Digna
appeared to the witness very healthy and
spoke in Spanish intelligently. The signing
ended around 12:30 p.m., and after it all ate
lunch. 20
Upon the evidence, the trial judge concluded
that Mansueto did not actually see Digna
Maravilla sign the will in question, basing such
conclusion upon the fact that while Mansueto
positively identified his own signature ("I
identify this as my signature") but not that of
the testatrix, his five answers to the questions
of counsel, in reference thereto, being "this
must be the signature of Mrs. Digna
Maravilla."cralaw virtua1aw library
In our opinion, the trial court’s conclusion is far
fetched, fanciful and unwarranted. It was but
natural that witness Mansueto should be
positive about his own signature, since he was
familiar with it. He had to be less positive about
Digna Maravilla’s signature since he could not
be closely acquainted with the same: for aught
the record shows, the signing of the will was
the only occasion he saw her sign; he had no
24
opportunity to study her signature before or
after the execution of Exhibit "A." Furthermore,
Page
he witnessed Digna’s signing not less than
fourteen years previously. To demand that in
identifying Digna’s signature Mansueto should
display a positiveness equal to the certainty
shown by him in recognizing his own, exceeds
the bounds of the reasonable. The variation in
the expressions used by the witness is the best
evidence that he was being candid and careful,
and it is a clear badge of truthfulness rather
than the reverse.
The trial court’s error gains no support from
Mansueto’s statement on cross-examination
that "I remember and (I) signed the will in the
presence of all the witnesses and in the
presence of attorney Villanueva" (page 29,
Volume 1, T.s.n., Amago). In the absence of an
assurance that no one else was present, this
assertion does not really contradict Mansueto’s
testimony in chief that "I have read the entire
document before I signed it in the presence of
the other witnesses, Digna Maravilla and
Attorney Villanueva" (t.s.n., Amago, Volume 1,
pages 18-19). It is well to note that the cross
examiner did not ask Mansueto if no one else
besides those mentioned by him had seen him
sign. Any contradiction inferred from both
statements is purely conjectural; it did not
come from the witness and is insufficient to
impeach his veracity, the difference in the
answers being due to no more than an
accidental lapse of memory. A will may be
allowed even if some witnesses not remember
having attested it, if other evidence
satisfactorily show due execution (V. Act 190,
Section 632), and that failure of witness to
identify his signature does not bar probate. 21
That Mansueto, Hernaez and Buenaflor,
together with the testatrix and the lawyer, sat
next to one another around one table when the
will was signed is clearly established by the
uncontradicted testimony of both attorney
Villanueva and Herminio Maravilla; and that
detail proves beyond doubt that each one of
the parties concerned did sign in the presence
of all the others. It should be remembered, in
this connection, that the test is not whether a
witness did see the signing of the will but
whether he was in a position to see if he chose
to do so. 22
The trial court rejected the evidence of both
Herminio Maravilla and Manuel Villanueva,
giving as a reason that they were biased and
interested in having the probate succeed. The
reasoning is not warranted: for Herminio
Maravilla certainly stood to gain more under
the previous will of his wife (Exhibit "G") where
he was made the sole beneficiary, As to
attorney Villanueva, while he had been a friend
of Herminio from boyhood, he also had been
the family lawyer, and his intervention in the
execution of the will of one of his clients
became inevitable, for it is not to be expected
that the testatrix should call upon a stranger for
the purpose. If Villanueva wished to perjure in
favor of Herminio, all he needed was to color
his testimony against the due execution of the
will (Exhibit "A") and not in favor thereof, since,
as previously observed, Digna’s first will
(Exhibit "G") was more advantageous to the
widower.
We find it difficult to understand the trial court’s
distrust of a lawyer who did no more than
discharge his professional duty, or its
readiness to attribute improper motives to
proponent’s witnesses. This Court, in Sotelo v.
Luzan, 59 Phil. 908, has remarked that —
"It is hardly conceivable that any attorney of
any standing would risk his professional
reputation by falsifying a will and then go
before a court and give false testimony."cralaw
virtua1aw library
And in the Fernandez v. Tantoco, 49 Phil. 380,
385, We ruled:jgc:chanrobles.com.ph
"‘In weighing the testimony of the attesting
witnesses to a will, the statements of a
competent attorney, who has been charged
with the responsibility of seeing to the proper
execution of the instrument, is entitled to
greater weight than the testimony of a person
casually called to participate in the act,
supposing of course that no motive is revealed
that should induce the attorney to prevaricate.
The reason is that the mind of the attorney,
being conversant with the requisites of proper
execution of the instrument, is more likely to
become fixed on details, and he is more likely
than other persons to retain those incidents in
his memory.’" (Italics supplied)
Appellees endeavoured to sustain the court’s
refusal to probate the will by referring to the
evidence of their witness Marino Tupas, a man
of "no permanent job", 23 who narrated that on
the last week of September, 1944 one Mariano
Buenaflor had been introduced to him by one
Lt. Garaton at his guerrilla outpost in
Montalban and described as a man wanted by
the Japanese. Tupas’ patently exaggerated
testimony is that this Buenaflor stayed with him
at his outpost camp until January, 1945, living
and sleeping with him, and was never for a
single moment out of his sight. 24 Why a
civilian refugee should remain at a guerrilla
25
outpost for four months; without engaging in
any particular helpful activity on his part, was
Page
not explained. Shown photographs and asked
to identify Buenaflor, Tupas hedged by
pleading that the Buenaflor who stayed with
him had a long beard. Thus, oppositor-
appellees’ reverse alibi for the instrumental
witness, Mariano Buenaflor, was not only
patently mendacious but did not establish any
reliable connection between the instrumental
witness of Digna’s will and the Buenaflor who,
according to Tupas, stuck to him as a burr in
1944. No wonder the trial court gave no credit
to such evidence.
Oppositors’ attempts to establish that the
testatrix Digna Maravilla was mentally
incompetent to validly execute the will in
question met no better fate in the court below.
They introduced one Eufrocina Berja who
qualified Digna Maravilla as insane because
she saw Digna Maravilla acting strangely one
morning in 1921 (23 years before the will was
executed). In Berja’s own words —
"Would you not call a person insane who is
waving a bunch of flowers and singing along a
road, especially taking into consideration their
reputation in the Community?" (t.s.n., 21 May
1959, page 19)
Even if to this ridiculous appraisal were to be
added the fact that (according to this witness)
Digna saw her in 1946, but would not answer
her questions and "was in a deep thought (sic)
and her tongue was coming out of her mouth"
(Do., pages 14-15), her evidence would
certainly not justify a finding that Digna
Maravilla was not competent to execute the
testament in 1944. By Berja’s standards, any
one could be held insane.
Nor is the case for the oppositors improved by
the evidence of their witness Eleazar Lopez,
who asserted having visited his aunt, Digna
Maravilla (whom he had not seen since he was
four years old), two days after the first bombing
of Manila by the American planes in
September, 1944. Lopez claimed to have seen
Digna on that occasion laughing and crying
and then staring blankly at the ceiling, without
recognizing the witness; and that he visited her
again toward mid-October of the same year
and she had worsened. 25 Coming from a
nephew who expected to succeed if the will in
question * were denied probate, and who
sought to become administrator of the estate,
even offering to resign from his position in the
government if appointed, 26 this testimony of
Lopez was evidently colored by his monetary
interest, thus leading to its correct discrediting
by the trial court. His recollection after 15 years
of the alleged symptoms of his aunt is very
suspicious, as it does not even appear that
Lopez at the time bothered to inquire from
other persons what caused his aunt’s alleged
abnormal condition. Moreover, the court’s duty
to reconcile conflicts of evidence should lead it
to hold that the symptoms described by Lopez
were due to a temporary disturbance of the
nerves caused by the unsettling effect of a
bombardment not previously experienced,
compatible with the due execution of the will on
7 October 1944. As between the testimony of
Lopez and that of attorney Villanueva, who
repeatedly visited and talked to the testatrix
around the time her will was executed, We
have no hesitation in accepting the latter’s view
that Digna Maravilla was competent to make
the will when it was signed. The law itself
declares that —
"To be of sound mind, it is not necessary that
the testator be in full possession of all his
reasoning faculties or that his mind be wholly
unbroken, unimpaired or unshattered by
disease, injury or other cause." (Civil Code,
Article 799; Bugnao v. Ubag, 14 Phil. 163.)
We are satisfied that the preponderance of
evidence is to the effect that the testament,
Exhibit "A," was duly executed by a qualified
testatrix and competent witnesses, in
conformity with the statutory requirements.
IN VIEW OF THE FOREGOING, the decree of
the court below denying probate of the 1944
will of Digna Maravilla (Exhibit "A") is reversed
and the said testament is hereby ordered
probated. Let the records be returned to the
Court of origin for further proceedings
conformable to law. Costs against oppositors-
appellees.
Concepcion, C.J., Dizon, Zaldivar, Castro,
Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.
26
Page
G.R. No. L-26545 December 16, 1927
Testate Estate of Florencia R. Mateo.
PERFECTO GABRIEL, petitioner-appellee,
vs.
RITA R. MATEO, ET AL., opponents-
appellants.
R. Gonzales Lloret, Carlos S. Basa, Thomas
Cary Welch and Camus, Delgado and Recto
for appellants.
The appellee in his own behalf.
AVANCEÑA, C. J.:
The judgment appealed from allowed the will of
Florencia Mateo dated February 6, 1923,
composed of two used sheets to probate. The
will appears to be signed by the testatrix and
three witnesses on the left margin of each of
the sheets, by the testatrix alone at the bottom,
and by the three witnesses after the attestation
clause. The testatrix died on August 13, 1925.
Opposition to such probate was filed by Rita
Mateo, the testatrix's sister, and by other
relatives.
The three attesting witnesses to this will,
testifying in this case, declared that the
signature of the testatrix were written in their
presence and that they signed their names in
the presence of the testatrix and of each other.
The testatrix from girlhood knew how to sign
her name and did so with her right hand; but as
the right side of her body later became
paralyzed, she learned to sign with her left
hand and for many years thereafter, up to the
time of her death, she used to sign with that
hand. Opponents allege that Florencia Mateo
did not sign this will.
There are three salient arguments among
those adduced by the opponents in support of
their opposition.
The attesting witnesses testified that the
testratrix signed before they did. The
signatures of the testatrix on the left margin of
the two sheets of the will are between the
signatures of the two witnesses Vidal Rañoa
and Julio Gabriel, and below her surname is
the signature of the other witness Felicisimo
Gabriel. The signatures of Vidal Rañoa and
Julio Gabriel are on a level with each other,
while that of Felicisimo Gabriel is found a little
lower down. The testatrix's signatures start on
the line with Felicisimo Gabriel's signature, but
tend to rise and her surname reaches a level
with Julio Gabriel's signature.
It is said that this direction of the testatrix's
signature was due to the fact that when it was
written Felicisimo Gabriel's signature was
already there, and so she had to write her
surname upwards in order to avoid interfering
with that Felicisimo Gabriel, which would have
been the case had she continued on the
horizontal line on which she had written her
first name. From this detail it is pretended to
draw the inference that the attesting witnesses
signed before testatrix, contrary to their
testimony that she singed before they did. This
deduction, however, is unnecessary. It may be
inferred with equal, if not greater, logic that the
testatrix signed before him, and when it came
to the witness Gabriel's turn, he, finding the
space below the testatrix signature free, signed
his name there. On the other hand, it may be
noted that the testatrix's other signature at the
bottom of the will also shows a more or less
marked tendency to rise, notwithstanding the
fact that there was no signature with which she
might interfere if she continued to write in a
straight horizontal line. Furthermore, if, as the
opposition alleges, the testatrix's signature is
not genuine and was placed there by another
person, it is strange that the latter should have
done so in such a way as to write it above
Gabriel's signature while following the
horizontal line, when this could have been
avoided by simply putting it a little higher. And
this may be attributed to carelessness in the
first case, but it cannot be so explained in the
second.
Attention is also called to the apparently
different kinds of ink used by the testatrix in her
signature and by the attesting witnesses.
Really an examination of these signature
reveals a somewhat deeper intensity of ink in
the signature of the testatrix than in those of
the attesting witnesses. It is alleged that this
circumstance cannot be reconciled with the
declaration of the attesting witnesses that they
used the same pen and ink as the testatrix.
But, only one of these witnesses declared this.
The other one was not sure of it and said that
he said that he did not perfectly remember this
detail. The third scarcely made reference to
this particular. At all events, this apparent
difference in ink may be merely
due — supposing that the same ink and pen
were used — to the difference in pressure
employed in writing these signatures, as is
reasonable to suppose when we consider that
the testatrix was a paralytic and wrote with her
left hand; or it may have been due to the fact
that the attesting witnesses dipped lightly in the
ink while the testatrix dipped the pen so as to
take up the ink from the bottom of the well. To
bring out this irregularity, the opposition
presented the expert Del Rosario who
asserted, among other things, that the
signature of the testatrix is more recent than
that of the attesting witnesses. If this opinion is
correct and if, as alleged, the testatrix's
signature is forged, it would mean that the
forgers, after having prepared the will and
27
made the witnesses sign, allowed sometime to
elapsed before forging the testatrix's signature,
Page
which supposition is not all probable, nor has it
been explained.lawphi1.net
At all events, even admitting that there is a
certain question as to whether the attesting
witnesses signed before or after the testatrix,
or whether or not they signed with the same
pen and ink, these are details of such trivial
importance, considering that this will was
signed two years before the date on which
these witnesses gave their testimony, that it is
not proper to set aside the will for this reason
alone.
The attesting witnesses to this will, who
testified also as witnesses at the trial of this
case, showed themselves to be intelligent and
honest, one of them being a lawyer of twelve
year's practice, and there is no reason to reject
their testimony, and to suppose that they were
untruthful in testifying, and that they falsified
the will in question.
Lastly, attention is called to the
unreasonableness of the testatrix in not leaving
anything to the principal opponent, her sister
Rita Mateo, and to her nephews and nieces, to
whom she had been so affectionate during life.
But as to the affectionate relations between the
deceased and the opponents, only the
opponent Rita Mateo testified, and she only
stated that she was on good terms with her
sister during the latter's lifetime; that the said
sister used to give her a sack or some gantas
of rice, and, a times, a little money; that she
held all her nephews and nieces in equal
regard. But even supposing that this were so,
there is nothing strange in the testatrix having
left nothing to the opponents, or in her having
left all of her estate to the only heir instituted in
her will, Tomas Mateo, who is also one of her
nieces. And not only is it not strange, but it
seems reasonable, since, according to the
evidence of the testatrix when the former was
but 3 years old, and from then on up to the
time of her death had never been separated
from her.
The opposition presented Doctor Banks as
expert. He testified that the signatures of the
testatrix in the will are not genuine. The
petitioner, on the other hand, presented
another expert, Pedro Serrano Laktao, who
affirmed that these signatures are genuine.
But, over the testimony of these experts, we
have the categorical and positive declaration of
veracious witnesses who affirm that these
signatures were written by the testatrix herself.
The judgment appealed from is affirmed, with
costs against the appellants. So ordered.
28
Page
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of
the Court of Appeals, First
1
Division, promulgated on May 4, 1973 in CA
G.R. No. 36523-R which reversed the decision
of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of
the last will and testament of the deceased
Isabel Gabriel. *
It appears that on June 24, 1961, herein
private respondent Lutgarda Santiago filed a
petition with the Court of First Instance of Rizal
docketed as Special Proceedings No. 3617, for
the probate of a will alleged to have been
executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal
beneficiary and executrix.
There is no dispute in the records that the late
Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas,
province of Rizal her place of residence, on
June 7, 1961 at the age of eighty-five (85),
having been born in 1876. It is likewise not
controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband
and children, lived with the deceased at the
latters residence prior an- d up to the time of
her death.
The will submitted for probate, Exhibit "F",
which is typewritten and in Tagalog, appears to
have been executed in Manila on the 15th day
of April, 1961, or barely two (2) months prior to
the death of Isabel Gabriel. It consists of five
(5) pages, including the pages whereon the
attestation clause and the acknowledgment of
the notary public were written. The signatures
of the deceased Isabel Gabriel appear at the
end of the will on page four and at the left
margin of all the pages. The attestation clause,
which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga
saksi o testigo na ang aming mga
tinitirahan ay nakasulat sa
gawing kanan at kahilira ng
aming mga pangalan sa ibaba
nito, ay pagpapatutuo na
ipinakilala ipinaalam at
ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na
binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito,
na siya niyang TESTAMENTO
AT HULING HABILIN, ngayong
ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora
na si Isabel Gabriel ang nasabing
testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na
dahon (page four) at nasa itaas
ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat
dahon (and on the left hand
margin of each and every page),
sa harap ng lahat at bawat isa sa
amin, at kami namang mga saksi
ay lumagda sa harap ng
nasabing testadora, at sa harap
ng lahat at bawat isa sa amin, sa
ilalim ng patunay ng mga saksi at
sa kaliwang panig ng lahat at
bawa't dahon ng testamentong
ito.
At the bottom thereof, under the heading
"Pangalan", are written the signatures of
Matilde D. Orobia, Celso D. Gimpaya and
Maria R. Gimpaya, and opposite the same,
under the heading "Tirahan", are their
respective places of residence, 961 Highway
54, Philamlife, for Miss Orobia, and 12 Dagala
St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin
of all the other pages. The WW is paged by
typewritten words as follows: "Unang Dahon"
and underneath "(Page One)", "Ikalawang
Dahon" and underneath "(Page Two)", etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired
to be buried in the Catholic Cemetery of
Navotas, Rizal in accordance with the rites of
the Roman Catholic Church, all expenses to be
paid from her estate; that all her obligations, if
any, be paid; that legacies in specified
amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago
Gabriel, and her nephews and nieces,
Benjamin, Salud, Rizalina (herein petitioner),
Victoria, Ester, Andres, all surnamed Gabriel,
and Evangeline, Rudyardo Rosa, Andrea,
Marcial, Numancia, Verena an surnamed
Santiago. To herein private respondent
Lutgarda Santiago, who was described in the
will by the testatrix as "aking mahal na
pamangkin na aking pinalaki, inalagaan at
minahal na katulad ng isang tunay na anak"
and named as universal heir and executor,
were bequeathed all properties and estate, real
or personal already acquired, or to be
acquired, in her testatrix name, after satisfying
the expenses, debts and legacies as
29
aforementioned.
Page
The petition was opposed by Rizalina Gabriel
Gonzales, herein petitioner, assailing the
document purporting to be the will of the
deceased on the following grounds:
1. that the same is not genuine;
and in the alternative
2. that the same was not
executed and attested as
required by law;
3. that, at the time of the alleged
execution of the purported wilt
the decedent lacked
testamentary capacity due to old
age and sickness; and in the
second alternative
4. That the purported WW was
procured through undue and
improper pressure and influence
on the part of the principal
beneficiary, and/or of some other
person for her benefit.
Lutgarda Santiago filed her Answer to the
Opposition on February 1, 1962. After trial, the
court a quo rendered judgment, the summary
and dispositive portions of which read:
Passing in summary upon the
grounds advanced by the
oppositor, this Court finds:
1. That there is no iota of
evidence to support the contentio
that the purported will of the
deceased was procured through
undue and improper pressure
and influence on the part of the
petitioner, or of some other
person for her benefit;
2. That there is insufficient
evidence to sustain the
contention that at the time of the
alleged execution of the
purported will, the deceased
lacked testamentary capacity due
to old age and sickness;
3. That sufficient and abundant
evidence warrants conclusively
the fact that the purported will of
the deceased was not executed
and attested as required by law;
4. That the evidence is likewise
conclusive that the document
presented for probate, Exhibit 'F'
is not the purported win allegedly
dictated by the deceased,
executed and signed by her, and
attested by her three attesting
witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the
document presented for probate
as the last wig and testament of
the deceased Isabel Gabriel is
here by DISALLOWED.
From this judgment of disallowance, Lutgarda
Santiago appealed to respondent Court,
hence, the only issue decided on appeal was
whether or not the will in question was
executed and attested as required by law. The
Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered
the decision now under review, holding that the
will in question was signed and executed by
the deceased Isabel Gabriel on April 15, 1961
in the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya and
Maria Gimpaya, signing and witnessing the
document in the presence of the deceased and
of each other as required by law, hence allow
ed probate.
Oppositor Rizalina Gabriel Gonzales moved for
reconsideration 3 of the aforesaid decision and
such motion was opposed 4 by petitioner-
appellant Lutgarda Santiago. Thereafter.
parties submitted their respective
Memoranda, 5 and on August 28, 1973,
respondent Court, Former Special First
Division, by Resolution 6 denied the motion for
reconsideration stating that:
The oppositor-appellee contends
that the preponderance of
evidence shows that the
supposed last wig and testament
of Isabel Gabriel was not
executed in accordance with law
because the same was signed on
several occasions, that the
testatrix did not sign the will in the
presence of all the instrumental
witnesses did not sign the will in
the presence of each other.
The resolution of the factual issue
raised in the motion for
reconsideration hinges on the
appreciation of the evidence. We
have carefully re-examined the
oral and documentary evidence
of record, There is no reason to
alter the findings of fact in the
decision of this Court sought to
be set aside. 7
In her petition before this Court, oppositor
Rizalina Gabriel Gonzales contends that
respondent Court abused its discretion and/or
acted without or in excess of its jurisdiction in
reverssing the findings of fact and conclusions
of the trial court. The Court, after deliberating
on the petition but without giving due course
resolved, in the Resolution dated Oct. 11, 1973
to require the respondents to comment
thereon, which comment was filed on Nov. 14,
1973. Upon consideration of the allegations,
the issues raised and the arguments adduced
30
in the petition, as well as the Comment 8 of
private respondent thereon, We denied the
Page
petition by Resolution on November 26,
1973, 9 the question raised being factual and
for insufficient showing that the findings of fact
by respondent Court were unsupported by
substantial evidence.
Subsequently, or on December 17, 1973,
petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent
answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A
Reply and Rejoinder to Reply followed. Finally,
on March 27, 1974, We resolved to give due
course to the petition.
The petitioner in her brief makes the following
assignment of errors:
I. The respondent Court of Appeals erred in
holding that the document, Exhibit "F" was
executed and attested as required by law when
there was absolutely no proof that the three
instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the
finding of the lower court that the preparation
and execution of the win Exhibit "F", was
unexpected and coincidental.
III. The Court of Appeals erred in finding that
Atty, Paraiso was not previously furnished with
the names and residence certificates of the
witnesses as to enable him to type such data
into the document Exhibit "F".
IV. The Court of Appeals erred in holding that
the fact that the three typewritten lines under
the typewritten words "Pangalan" and
"Tinitirahan" were left blank shows beyond
cavil that the three attesting witnesses were all
present in the same occasion.
V. The Court of Appeals erred in reversing the
trial court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt
Exhibit "F , without any note or document, to
Atty. Paraiso.
VI. The Court of Appeals erred in reversing the
finding of the trial court that Matilde Orobia was
not physically present when the Will Exhibit "F"
was allegedly signed on April 15, 1961 by the
deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that
the trial court gave undue importance to the
picture takings as proof that the win was
improperly executed.
VIII. The Court of Appeals erred in holding that
the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing
and notary) presented by the petitioner had
been explained away, and that the trial court
erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its
appellate jurisdiction or has so far departed
from the accepted and usual course of judicial
proceedings, as to call for an exercise of the
power of supervision.
X. The Court of Appeals erred in reversing the
decision of the trial court and admitting to
probate Exhibit "F", the alleged last will and
testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of
errors that the same are substantially factual in
character and content. Hence, at the very
outset, We must again state the oft-repeated
and well-established rule that in this
jurisdiction, the factual findings of the Court of
Appeals are not reviewable, the same being
binding and conclusive on this Court. This rule
has been stated and reiterated in a long line of
cases enumerated in Chan vs. CA (L-27488,
June 30, 1970, 33 SCRA 737,
12
743) and Tapas vs. CA (L-22202, February
27; 1976, 69 SCRA 393), 13 and in the more
recent cases of Baptisia vs. Carillo and
CA (L32192, July 30, 1976, 72 SCRA 214,
217) and Vda. de Catindig vs. Heirs of Catalina
Roque (L-25777, November 26, 1976, 74
SCRA 83, 88). In the case of Chan vs. CA, this
Court said:
... from Guico v. Mayuga, a 1936 decision, the
opinion being penned by the then Justice
Recto, it has been well-settled that the
jurisdiction of tills Court in cases brought to us
from the Court of Appeals is limited to
reviewing and revising the errors of law
imputed to it, its findings of fact being
conclusive. More specifically, in a decision
exactly a month later, this Court, speaking
through the then Justice Laurel, it was held that
the same principle is applicable, even if the
Court of Appeals was in disagreement with the
lower court as to the weight of the evidence
with a consequent reversal of its findings of
fact ...
Stated otherwise, findings of facts by the Court
of Appeals, when supported by substantive
evidence are not reviewable on appeal by
certiorari. Said findings of the appellate court
are final and cannot be disturbed by Us
particularly because its premises are borne out
by the record or based upon substantial
evidence and what is more, when such findings
are correct. Assignments of errors involving
factual issues cannot be ventilated in a review
of the decision of the Court of Appeals
because only legal questions may be raised.
The Supreme Court is not at liberty to alter or
modify the facts as set forth in the decision of
the Court of Appeals sought to be reversed.
Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute
scrutiny by the Supreme Court is in order, and
resort to duly-proven evidence becomes
necessary. The general rule We have thus
stated above is not without some recognized
31
exceptions.
Page
Having laid down the above legal precepts as
Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends
that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was
executed and attested as required by law when
there was absolutely no proof that the three
instrumental witnesses were credible
witnesses. She argues that the require. ment in
Article 806, Civil Code, that the witnesses must
be credible is an absolute requirement which
must be complied with before an alleged last
will and testament may be admitted to probate
and that to be a credible witness, there must
be evidence on record that the witness has a
good standing in his community, or that he is
honest and upright, or reputed to be
trustworthy and reliable. According to
petitioner, unless the qualifications of the
witness are first established, his testimony may
not be favorably considered. Petitioner
contends that the term "credible" is not
synonymous with "competent" for a witness
may be competent under Article 820 and 821
of the Civil Code and still not be credible as
required by Article 805 of the same Code. It is
further urged that the term "credible" as used in
the Civil Code should receive the same settled
and well- known meaning it has under the
Naturalization Law, the latter being a kindred
legislation with the Civil Code provisions on
wigs with respect to the qualifications of
witnesses.
We find no merit to petitioner's first assignment
of error. Article 820 of the Civil Code provides
the qualifications of a witness to the execution
of wills while Article 821 sets forth the
disqualification from being a witness to a win.
These Articles state:
Art. 820. Any person of sound
mind and of the age of eighteen
years or more, and not blind, deaf
or dumb, and able to read and
write, may be a witness to the
execution of a will mentioned in
article 806 of this Code. "Art. 821.
The following are disqualified
from being witnesses to a will:
(1) Any person not domiciled in
the Philippines,
(2) Those who have been
convicted of falsification of a
document, perjury or false
testimony.
Under the law, there is no mandatory
requirement that the witness testify initially or
at any time during the trial as to his good
standing in the community, his reputation for
trustworthythiness and reliableness, his
honesty and uprightness in order that his
testimony may be believed and accepted by
the trial court. It is enough that the
qualifications enumerated in Article 820 of the
Civil Code are complied with, such that the
soundness of his mind can be shown by or
deduced from his answers to the questions
propounded to him, that his age (18 years or
more) is shown from his appearance,
testimony , or competently proved otherwise,
as well as the fact that he is not blind, deaf or
dumb and that he is able to read and write to
the satisfaction of the Court, and that he has
none of the disqualifications under Article 821
of the Civil Code. We reject petitioner's
contention that it must first be established in
the record the good standing of the witness in
the community, his reputation for
trustworthiness and reliableness, his honesty
and uprightness, because such attributes are
presumed of the witness unless the contrary is
proved otherwise by the opposing party.
We also reject as without merit petitioner's
contention that the term "credible" as used in
the Civil Code should be given the same
meaning it has under the Naturalization Law
where the law is mandatory that the petition for
naturalization must be supported by two
character witnesses who must prove their good
standing in the community, reputation for
trustworthiness and reliableness, their honesty
and uprightness. The two witnesses in a
petition for naturalization are character
witnesses in that being citizens of the
Philippines, they personally know the petitioner
to be a resident of the Philippines for the period
of time required by the Act and a person of
good repute and morally irreproachable and
that said petitioner has in their opinion all the
qualifications necessary to become a citizen of
the Philippines and is not in any way
disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth
Act No. 473 as amended).
In probate proceedings, the instrumental
witnesses are not character witnesses for they
merely attest the execution of a will or
testament and affirm the formalities attendant
to said execution. And We agree with the
respondent that the rulings laid down in the
cases cited by petitioner concerning character
witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills
executed under the Civil Code of the
Philippines.
In the case at bar, the finding that each and
everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and
Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as
32
found by the respondent Court of Appeals,
which findings of fact this Tribunal is bound to
Page
accept and rely upon. Moreover, petitioner has
not pointed to any disqualification of any of the
said witnesses, much less has it been shown
that anyone of them is below 18 years of age,
of unsound mind, deaf or dumb, or cannot read
or write.
It is true that under Article 805 of the New Civil
Code, every will, other than a holographic will,
must be subscribed at the end thereof by the
testator 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, While the petitioner submits that
Article 820 and 821 of the New Civil Code
speak of the competency of a witness due to
his qualifications under the first Article and
none of the disqualifications under the second
Article, whereas Article 805 requires the
attestation of three or more credible witnesses,
petitioner concludes that the
term credible requires something more than
just being competent and, therefore, a witness
in addition to being competent under Articles
820 and 821 must also be a credible witness
under Article 805.
Petitioner cites American authorities that
competency and credibility of a witness are not
synonymous terms and one may be a
competent witness and yet not a credible one.
She exacerbates that there is no evidence on
record to show that the instrumental witnesses
are credible in themselves, that is, that they are
of good standing in the community since one
was a family driver by profession and the
second the wife of the driver, a housekeeper. It
is true that Celso Gimpaya was the driver of
the testatrix and his wife Maria Gimpaya,
merely a housekeeper, and that Matilde Orobia
was a piano teacher to a grandchild of the
testatrix But the relation of employer and
employee much less the humble or financial
position of a person do not disqualify him to be
a competent testamentary witness. (Molo
Pekson and Perez Nable vs. Tanchuco, et al.,
100 Phil. 344; Testate Estate of Raymundo,
Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the
qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil
Code are those mentioned in Article 820 of the
same Code, this being obvious from that
portion of Article 820 which says "may be Q
witness to the execution of a will mentioned in
Article 805 of this Code," and cites authorities
that the word "credible" insofar as witnesses to
a will are concerned simply means "
competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held
that "Granting that a will was duly executed
and that it was in existence at the time of, and
not revoked before, the death of the testator,
still the provisions of the lost wig must be
clearly and distinctly proved by at least two
credible witnesses. 'Credible witnesses' mean
competent witnesses and not those who testify
to facts from or upon hearsay.
" emphasissupplied).
In Molo Pekson and Perez Nable vs.
Tanchuco, et al., 100 Phil. 344, the Supreme
Court held that "Section 620 of the same Code
of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years
or more, and not blind, deaf, or dumb and able
to read and write, may be a witness to the
execution of a will. This same provision is
reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and
employee, or being a relative to the beneficiary
in a win, does not disqualify one to be a
witness to a will. The main qualification of a
witness in the attestation of wills, if other
qualifications as to age, mental capacity and
literacy are present, is that said witness must
be credible, that is to say, his testimony may
be entitled to credence. There is a long line of
authorities on this point, a few of which we may
cite:
A 'credible witness is one who is
not is not to testify by mental
incapacity, crime, or other cause.
Historical Soc of Dauphin County
vs. Kelker 74 A. 619, 226 Pix 16,
134 Am. St. Rep. 1010. (Words
and Phrases, Vol. 10, p. 340).
As construed by the common
law, a 'credible witness' to a will
means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114
Me. 105, Ann. Cas. 1917A, 837.
(lbid, p. 341).
Expression 'credible witness' in
relation to attestation of wins
means 'competent witness that is,
one competent under the law to
testify to fact of execution of will.
Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank
of Uvalde, Tex . Civ. App. 60
S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the
statute of wills requiring that a will
shall be attested by two credible
witnesses means competent;
witnesses who, at the time of
attesting the will, are legally
competent to testify, in a court of
justice, to the facts attested by
subscribing the will, the
33
competency being determined as
of the date of the execution of the
Page
 will and not of the timr it is offered
for probate,Smith vs. Goodell 101
N.E. 255, 256, 258 111. 145.
(Ibid.)
Credible witnesses as used in the
statute relating to wills, means
competent witnesses — that is,
such persons as are not legally
disqualified from testifying in
courts of justice, by reason of
mental incapacity, interest, or the
commission of crimes, or other
cause excluding them from
testifying generally, or rendering
them incompetent in respect of
the particular subject matter or in
the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E.
545, 546, 322 111. 42. (Ibid. p,
343)
In the strict sense, the competency of a person
to be an instrumental witness to a will is
determined by the statute, that is Art. 820 and
821, Civil Code, whereas his credibility
depends On the appreciation of his testimony
and arises from the belief and conclusion of the
Court that said witness is telling the truth.
Thus, in the case ofVda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No.
L-22005, May 3, 1968, the Supreme Court held
and ruled that: "Competency as a witness is
one thing, and it is another to be a credible
witness, so credible that the Court must accept
what he says. Trial courts may allow a person
to testify as a witness upon a given matter
because he is competent, but may thereafter
decide whether to believe or not to believe his
testimony." In fine, We state the rule that the
instrumental witnesses in Order to be
competent must be shown to have the
qualifications under Article 820 of the Civil
Code and none of the disqualifications under
Article 821 and for their testimony to be
credible, that is worthy of belief and entitled to
credence, it is not mandatory that evidence be
first established on record that the witnesses
have a good standing in the community or that
they are honest and upright or reputed to be
trustworthy and reliable, for a person is
presumed to be such unless the contrary is
established otherwise. In other words, the
instrumental witnesses must be competent and
their testimonies must be credible before the
court allows the probate of the will they have
attested. We, therefore, reject petitioner's
position that it was fatal for respondent not to
have introduced prior and independent proof of
the fact that the witnesses were "credible
witnesses that is, that they have a good
standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth,
seventh and eighth assignments of errors,
petitioner disputes the findings of fact of the
respondent court in finding that the preparation
and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was
not previously furnished with the names and
residence certificates of the witnesses as to
enable him to type such data into the
document Exhibit "F", in holding that the fact
that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan"
were left blank shows beyond cavil that the
three attesting witnesses were all present in
the same occasion, in holding credible that
Isabel Gabriel could have dictated the will
without note or document to Atty. Paraiso, in
holding that Matilde Orobia was physically
present when the will was signed on April 15,
1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria
Gimpaya, in holding that the trial court gave
undue importance to the picture takings as
proof that the will was improperly executed,
and in holding that the grave contradictions,
evasions and misrepresentations of the
witnesses (subscribing and notary) presented
by the petitioner had been explained away.
Since the above errors are factual We must
repeat what We have previously laid down that
the findings of fact of the appellate court are
binding and controlling which We cannot
review, subject to certain exceptions which We
win consider and discuss hereinafter. We are
convinced that the appellate court's findings
are sufficiently justified and supported by the
evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the
testatrix to the office of Atty. Paraiso and
bringing all the witnesses without previous
appointment for the preparation and execution
of the win and that it was coincidental that Atty.
Paraiso was available at the moment impugns
the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of
Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as
there was no prior appointment with him, but
he explained that he was available for any
business transaction on that day and that
Isabel Gabriel had earlier requested him to
help her prepare her will. The finding of the
appellate court is amply based on the
testimony of Celso Gimpaya that he was not
only informed on the morning of the day that he
witnessed the will but that it was the third time
when Isabel Gabriel told him that he was going
to witness the making of her will, as well as the
testimony of Maria Gimpaya that she was
34
called by her husband Celso Gimpaya to
proceed to Isabel Gabriel's house which was
Page
nearby and from said house, they left in a car
to the lawyer's office, which testimonies are
recited in the respondent Court's decision.
The respondent Court further found the
following facts: that Celso Gimpaya and his
wife Maria Gimpaya obtained residence
certificates a few days before Exhibit "F" was
executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria
Gimpaya's residence certificate No. A-5114974
was issued also at Navotas, Rizal on April 14,
1961. The respondent Court correctly observed
that there was nothing surprising in these facts
and that the securing of these residence
certificates two days and one day, respectively,
before the execution of the will on April 15,
1961, far from showing an amazing
coincidence, reveals that the spouses were
earlier notified that they would be witnesses to
the execution of Isabel Gabriel's will.
We also agree with the respondent Court's
conclusion that the excursion to the office of
Atty. Paraiso was planned by the deceased,
which conclusion was correctly drawn from the
testimony of the Gimpaya spouses that they
started from the Navotas residence of the
deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to
Matilde Orobia's house in Philamlife, Quezon
City to fetch her and from there, all the three
witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for
about ten to fifteen minutes at the clinic of Dr.
Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.
It is also evident from the records, as testified
to by Atty. Paraiso, that previous to the day
that. the will was executed on April 15, 1961,
Isabel Gabriel had requested him to help her in
the execution of her will and that he told her
that if she really wanted to execute her will, she
should bring with her at least the Mayor of
Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician
notwithstanding the fact that he believed her to
be of sound and disposition mind. From this
evidence, the appellate court rightly concluded,
thus: "It is, therefore, clear that the presence of
Isabel Gabriel and her witnesses Matilde
Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of
Atty. Paraiso was not coincidental as their
gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty.
Paraiso was not previously furnished with the
names and residence certificates of the
witnesses as to enable him to type such data
into the document Exhibit ' L which the
petitioner assails as contradictory and
irreconcilable with the statement of the Court
that Atty. Paraiso was handed a list (containing
the names of the witnesses and their
respective residence certificates) immediately
upon their arrival in the law office by Isabel
Gabriel and this was corroborated by Atty.
Paraiso himself who testified that it was only on
said occasion that he received such list from
Isabel Gabriel, We cannot agree with
petitioner's contention. We find no contradiction
for the, respondent Court held that on the
occasion of the will making on April 15, 1961,
the list was given immediately to Atty. Paraiso
and that no such list was given the lawyer in
any previous occasion or date prior to April 15,
1961.
But whether Atty. Paraiso was previously
furnished with the names and residence
certificates of the witnesses on a prior occasion
or on the very occasion and date in April 15,
1961 when the will was executed, is of no
moment for such data appear in the notarial
acknowledgment of Notary Public Cipriano
Paraiso, subscribed and sworn to by the
witnesses on April 15, 1961 following the
attestation clause duly executed and signed on
the same occasion, April 15, 1961. And since
Exhibit "F" is a notarial will duly acknowledged
by the testatrix and the witnesses before a
notary public, the same is a public document
executed and attested through the intervention
of the notary public and as such public
document is evidence of the facts in clear,
unequivocal manner therein expressed. It has
in its favor the presumption of regularity. To
contradict all these, there must be evidence
that is clear, convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA
407). We find no such evidence pointed by
petitioner in the case at bar.
Likewise, the conclusion of the Court of
Appeals in holding that the fact that the three
typewritten lines under the typewritten words
"pangalan ' and "tinitirahan" were left blank
shows beyond cavil that the three attesting
witnesses were all present in the same
occasion merits Our approval because tills
conclusion is supported and borne out by the
evidence found by the appellate court, thus:
"On page 5 of Exhibit "F", beneath the
typewritten words "names", "Res. Tax Cert.
date issued" and place issued the only name of
Isabel Gabriel with Residence Tax certificate
No. A-5113274 issued on February 24, 1961 at
Navotas Rizal appears to be in typewritten
form while the names, residence tax certificate
numbers, dates and places of issuance of said
certificates pertaining to the three (3) witnesses
35
were personally handwritten by Atty. Paraiso.
Again, this coincides with Atty. Paraiso's even
Page
the sale must be made to close relatives; and
the seventh was the appointment of the
appellant Santiago as executrix of the will
without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not
given and the numbers of the certificates of title
were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of
the Torrens titles of the properties disposed
and the docket number of a special proceeding
are indicated which Atty. Paraiso candidly
admitted were supplied by him, whereupon
petitioner contends that it was incredible that
Isabel Gabriel could have dictated the will
Exhibit "F" without any note or document to
Atty. Paraiso, considering that Isabel Gabriel
was an old and sickly woman more than
eighty-one years old and had been suffering
from a brain injury caused by two severe blows
at her head and died of terminal cancer a few
weeks after the execution of Exhibit "F". While
we can rule that this is a finding of fact which is
within the competency of the respondent
appellate court in determining the testamentary
capacity of the testatrix and is, therefore,
beyond Our power to revise and review, We
nevertheless hold that the conclusion reached
by the Court of Appeals that the testatrix
dictated her will without any note or
memorandum appears to be fully supported by
the following facts or evidence appearing on
record. Thus, Isabel Gabriel, despite her age,
was particularly active in her business affairs
as she actively managed the affairs of the
movie business ISABELITA Theater, paying
the aparatistas herself until June 4, 1961, 3
days before her death. She was the widow of
the late Eligio Naval, former Governor of Rizal
Province and acted as coadministratrix in the
Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in
Tagalog, a dialect known and understood by
her and in the light of all the circumstances,
We agree with the respondent Court that the
testatrix dictated her will without any note or
memorandum, a fact unanimously testified to
by the three attesting witnesses and the notary
public himself.
Petitioner's sixth assignment of error is also
bereft of merit. The evidence, both testimonial
and documentary is, according to the
respondent court, overwhelming that Matilde
Orobia was physically present when the will
was signed on April 15, 1961 by the testatrix
and the other two witnesses, Celso Gimpaya
and Maria Gimpaya. Such factual finding of the
appellate court is very clear, thus: "On the
contrary, the record is replete with proof that
Matilde Orobia was physically present when
the will was signed by Isabel Gabriel on April
'15, 1961 along with her co-witnesses Celso
Gimpaya and Maria Gimpaya. The trial court's
conclusion that Orobia's admission that she
gave piano lessons to the child of the appellant
on Wednesdays and Saturdays and that April
15, 1961 happened to be a Saturday for which
reason Orobia could not have been present to
witness the will on that — day is purely
conjectural. Witness Orobia did not admit
having given piano lessons to the appellant's
child every Wednesday and Saturday without
fail. It is highly probable that even if April 15,
1961 were a Saturday, she gave no piano
lessons on that day for which reason she could
have witnessed the execution of the will.
Orobia spoke of occasions when she missed
giving piano lessons and had to make up for
the same. Anyway, her presence at the law
office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to
preclude her from giving piano lessons on the
afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia,
Celso Gimpaya and Maria Gimpaya that
Matilde was present on April 15, 1961 and that
she signed the attestation clause to the will and
on the left-hand margin of each of the pages of
the will, the documentary evidence which is the
will itself, the attestation clause and the notarial
acknowledgment overwhelmingly and
convincingly prove such fact that Matilde
Orobia was present on that day of April 15,
1961 and that she witnessed the will by signing
her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde
Orobia signed is the best evidence as to the
date of signing because it preserves in
permanent form a recital of all the material
facts attending the execution of the will. This is
the very purpose of the attestation clause
which is made for the purpose of preserving in
permanent form a record of the facts attending
the execution of the will, so that in case of
failure in the memory of the subscribing
witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec.
132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner
faulting the Court of Appeals in holding that the
trial court gave undue importance to the
picture-takings as proof that the win was
improperly executed, We agree with the
reasoning of the respondent court that:
"Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to
what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the
photographer was Benjamin Cifra, Jr., is at
worst a minor mistake attributable to lapse of
36
time. The law does not require a photographer
for the execution and attestation of the will. The
Page
fact that Miss Orobia mistakenly Identified the
photographer as Cesar Mendoza scarcely
detracts from her testimony that she was
present when the will was signed because
what matters here is not the photographer but
the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso
Gimpaya. " Further, the respondent Court
correctly held: "The trial court gave undue
importance to the picture takings, jumping
therefrom to the conclusion that the will was
improperly executed. The evidence however,
heavily points to only one occasion of the
execution of the will on April 15, 1961 which
was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These
witnesses were quite emphatic and positive
when they spoke of this occasion. Hence, their
Identification of some photographs wherein
they all appeared along with Isabel Gabriel and
Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It
is true that the second picture-taking was
disclosed at the cross examination of Celso
Gimpaya. But this was explained by Atty.
Paraiso as a reenactment of the first incident
upon the insistence of Isabel Gabriel. Such
reenactment where Matilde Orobia was
admittedly no longer present was wholly
unnecessary if not pointless. What was
important was that the will was duly executed
and witnessed on the first occasion on April 15,
1961 , " and We agree with the Court's
rationalization in conformity with logic, law and
jurisprudence which do not require picture-
taking as one of the legal requisites for the
execution or probate of a will.
Petitioner points to alleged grave
contradictions, evasions and
misrepresentations of witnesses in their
respective testimonies before the trial court. On
the other hand, the respondent Court of
Appeals held that said contradictions, evasions
and misrepresentations had been explained
away. Such discrepancies as in the description
of the typewriter used by Atty. Paraiso which
he described as "elite" which to him meant big
letters which are of the type in which the will
was typewritten but which was Identified by
witness Jolly Bugarin of the N.B.I. as pica the
mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar
Mendoza when actually it was Benjamin Cifra,
Jr.— these are indeed unimportant details
which could have been affected by the lapse of
time and the treachery of human memory such
that by themselves would not alter the
probative value of their testimonies on the true
execution of the will, (Pascual vs. dela Cruz, 28
SCRA 421, 424) for it cannot be expected that
the testimony of every person win be Identical
and coinciding with each other with regard to
details of an incident and that witnesses are
not expected to remember all details. Human
experience teach us "that contradictions of
witnesses generally occur in the details of
certain incidents, after a long series of
questionings, and far from being an evidence
of falsehood constitute a demonstration of
good faith. In as much as not all those who
witness an incident are impressed in like
manner, it is but natural that in relating their
impressions, they should not agree in the
minor details; hence the contradictions in their
testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the
findings of the trial court should not have been
disturbed by the respondent appellate court
because the trial court was in a better position
to weigh and evaluate the evidence presented
in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-
established exceptions. The right of the Court
of Appeals to review, alter and reverse the
findings of the trial court where the appellate
court, in reviewing the evidence has found that
facts and circumstances of weight and
influence have been ignored and overlooked
and the significance of which have been
misinterpreted by the trial court, cannot be
disputed. Findings of facts made by trial courts
particularly when they are based on conflicting
evidence whose evaluation hinges on
questions of credibility of contending witnesses
hes peculiarly within the province of trial courts
and generally, the appellate court should not
interfere with the same. In the instant case,
however, the Court of Appeals found that the
trial court had overlooked and misinterpreted
the facts and circumstances established in the
record. Whereas the appellate court said that
"Nothing in the record supports the trial court's
unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso;"
that the trial court's conclusion that Matilde
Orobia could not have witnessed anybody
signing the alleged will or that she could not
have witnessed Celso Gimpaya and Maria
Gimpaya sign the same or that she witnessed
only the deceased signing it, is a conclusion
based not on facts but on inferences; that the
trial court gave undue importance to the
picture-takings, jumping therefrom to the
conclusion that the will was improperly
executed and that there is nothing in the entire
record to support the conclusion of the court a
quo that the will signing occasion was a mere
coincidence and that Isabel Gabriel made an
appointment only with Matilde Orobia to
witness the signing of her will, then it becomes
37
the duty of the appellate court to reverse
findings of fact of the trial court in the exercise
Page
of its appellate jurisdiction over the lower
courts.
Still the petitioner insists that the case at bar is
an exception to the rule that the judgment of
the Court of Appeals is conclusive as to the
facts and cannot be reviewed by the Supreme
Court. Again We agree with the petitioner that
among the exceptions are: (1) when the
conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2)
when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave
abuse of discretion; (4) when the presence of
each other as required by law. " Specifically,
We affirm that on April 15, 1961 the testatrix
Isabel Gabriel, together with Matilde Orobia,
Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the
office of Atty. Cipriano Paraiso at the Bank of
P.I. Building, Manila in the morning of that day;
that on the way, Isabel Gabriel obtained a
medical certificate from one Dr. Chikiamko
which she gave to Atty. Paraiso upon arriving
at the latter's office and told the lawyer that she
wanted her will to be made; that Atty. Paraiso
asked Isabel Gabriel to dictate what she
wanted to be written in the will and the attorney
wrote down the dictation of Isabel Gabriel in
Tagalog, a language known to and spoken by
her; that Atty. Paraiso read back to her what he
wrote as dictated and she affirmed their
correctness; the lawyer then typed the will and
after finishing the document, he read it to her
and she told him that it was alright; that
thereafter, Isabel Gabriel signed her name at
the end of the will in the presence of the three
witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya and also at the left-hand
margin of each and every page of the
document in the presence also of the said
three witnesses; that thereafter Matilde Orobia
attested the will by signing her name at the end
of the attestation clause and at the left-hand
margin of pages 1, 2, 3 and 5 of the document
in the presence of Isabel Gabriel and the other
two witnesses, Celso Gimpaya and Maria
Gimpaya; then, Celso Gimpaya signed also the
will at the bottom of the attestation clause and
at the left-hand margin of the other pages of
the document in the presence of Isabel
Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and
at the left-hand margin of every page in the
presence of Isabel Gabriel, Matilde Orobia and
Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV,
Series of 1961, in his Notarial Register. On the
occasion of the execution and attestation of the
will, a photographer took pictures, one Exhibit
"G", depicting Matilde Orobia, the testatrix
Isabel Gabriel, Celso Gimpaya, Maria Gimpaya
and Atty. Paraiso, taken on said occasion of
the signing of the will, and another, Exhibit "H",
showing Matilde Orobia signing testimony that
he had earlier advised Isabel Gabriel to bring
with her at least the Mayor and a Councilor of
Navotas, Rizal to be her witnesses for he did
not know beforehand the Identities of the three
attesting witnesses until the latter showed up at
his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not
controverted that he wrote down in his own
hand the date appearing on page 5 of Exhibit
"F" dissipates any lingering doubt that he
prepared and ratified the will on the date in
question."
It is also a factual finding of the Court of
Appeals in holding that it was credible that
Isabel Gabriel could have dictated the will,
Exhibit "F", without any note or document to
Atty. Paraiso as against the contention of
petitioner that it was incredible. This ruling of
the respondent court is fully supported by the
evidence on record as stated in the decision
under review, thus: "Nothing in the record
supports the trial court's unbelief that Isabel
Gabriel dictated her will without any note or
document to Atty. Paraiso. On the contrary, all
the three attesting witnesses uniformly testified
that Isabel Gabriel dictated her will to Atty.
Paraiso and that other than the piece of paper
that she handed to said lawyer she had no
note or document. This fact jibes with the
evidence — which the trial court itself believed
was unshaken — that Isabel Gabriel was of
sound disposing memory when she executed
her will.
Exhibit "F" reveals only seven (7) dispositions
which are not complicated but quite simple.
The first was Isabel Gabriel's wish to be
interred according to Catholic rites the second
was a general directive to pay her debts if any;
the third provided for P1,000.00 for her sister
Praxides Gabriel Vda. de Santiago and
P2,000.00 for her brother Santiago Gabriel; the
fourth was a listing of her 13 nephews and
nieces including oppositor-appellee Rizalina
Gabriel and the amount for each legatee the
fifth was the institution of the petitioner-
appellant, Lutgarda Santiago as the principal
heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the
remainder of her estate which she willed in
favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to
anyone except in extreme situations in which
judgment is based on a misapprehension of
facts; (5) when the findings of fact are
conflicting, (6) when the Court of Appeals, in
38
making its findings, went beyond the issues of
the case and the same is contrary to the
Page
admissions of both appellant and appellee. so a simulated signing was performed during
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. which incident Matilde Orobia was not present.
31, 1967; Ramos vs. Pepsi Cola Bottling Co., Petitioner's exacerbation centers on the
G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. supposed incredibility of the testimonies of the
City of Manila, G.R. No. L-19570; Sept. 14, witnesses for the proponent of the will, their
1967). alleged evasions, inconsistencies and
Petitioner's insistence is without merit. We hold contradictions. But in the case at bar, the three
that the case at bar does not fall within any of instrumental witnesses who constitute the best
the exceptions enumerated above. We likewise evidence of the will making have testified in
hold that the findings of fact of the respondent favor of the probate of the will. So has the
appellate court are fully supported by the lawyer who prepared it, one learned in the law
evidence on record. The conclusions are fully and long in the practice thereof, who thereafter
sustained by substantial evidence. We find no notarized it. All of them are disinterested
abuse of discretion and We discern no witnesses who stand to receive no benefit from
misapprehension of facts. The respondent the testament. The signatures of the witnesses
Court's findings of fact are not conflicting. and the testatrix have been identified on the
Hence, the well-established rule that the will and there is no claim whatsoever and by
decision of the Court of Appeals and its anyone, much less the petitioner, that they
findings of fact are binding and conclusive and were not genuine. In the last and final analysis,
should not be disturbed by this Tribunal and it the herein conflict is factual and we go back to
must be applied in the case at bar in its full the rule that the Supreme Court cannot review
force and effect, without qualification or and revise the findings of facts of the
reservation. The above holding simply respondent Court of Appeals.
synthesize the resolutions we have heretofore WHEREFORE, IN VIEW OF THE
made in respect ' to petitioner's previous FOREGOING, the judgment appealed from is
assignments of error and to which We have hereby AFFIRMED, with costs against the
disagreed and, therefore, rejected. petitioner.
The last assignments of error of petitioner must SO ORDERED.
necessarily be rejected by Us as We find the
respondent Court acted properly and correctly
and has not departed from the accepted and
usual course of judicial proceedings as to call
for the exercise of the power of supervision by
the Supreme Court, and as We find that the
Court of Appeals did not err in reversing the
decision of the trial court and admitting to
probate Exhibit "F", the last will and testament
of the deceased Isabel Gabriel.
We rule that the respondent Court's factual
findings upon its summation and evaluation of
the evidence on record is unassailable that:
"From the welter of evidence presented, we are
convinced that the will in question was
executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in
the the will on a table with Isabel Gabriel,
Celso Gimpaya and Maria Gimpaya sitting
around the table. Atty. Paraiso, after finishing
the notarial act, then delivered the original to
Isabel Gabriel and retained the other copies for
his file and notarial register. A few days
following the signing of the will, Isabel Gabriel,
Celso Gimpaya and another photographer
arrived at the office of Atty. Paraiso and told
the lawyer that she wanted another picture
taken because the first picture did not turn out
good. The lawyer told her that this cannot be
done because the will was already signed but
39

Isabel Gabriel insisted that a picture be taken,

Page
G.R. No. L-21755 December 29, 1924
In the matter of the testate estate of Antonio
Mojal, deceased. FILOMENA
NAYVE, petitioner-appellee,
vs.
LEONA MOJAL and LUCIANA
AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.
ROMUALDEZ, J.:
This is a proceeding for the probate of the will
of the deceased Antonio Mojal instituted by his
surviving spouse, Filomena Nayve. The
probate is opposed by Leona Mojal and
Luciana Aguilar, sister and niece, respectively,
of the deceased.
The Court of First Instance of Albay, which
tried the case, overruled the objections to the
will, and ordered the probate thereof, holding
that the document in controversy was the last
will and testament of Antonio Mojal, executed
in accordance with law. From this judgment the
opponents appeal, assigning error to the
decree of the court allowing the will to probate
and overruling their opposition.
The will in question, Exhibit A, is composed of
four sheets with written matter on only side of
each, that is, four pages written on four sheets.
The four sides or pages containing written
matter are paged "Pag. 1," "Pag. 2," "Pag. 3,"
"Pag. 4," successively. Each of the first two
sides or pages, which was issued, was signed
by the testator and the three witnesses on the
margin, left side of the reader. On the third
page actually used, the signatures of the three
witnesses appear also on the margin, left side
of the reader, but the signature of the testator
is not on the margin, but about the middle of
the page, at the end of the will and before the
attestation clause. On the fourth page, the
signatures of the witnesses do not appear on
the margin, but at the bottom of the attestation
clause, it being the signature of the testator
that is on the margin, left side of the reader.
The defects attributed to the will are:
(a) The fact of not having been signed by the
testator and the witnesses on each and every
sheet on the left margin; (b) the fact of the
sheets of the document not being paged with
letters; (c) the fact that the attestation clause
does not state the number of sheets or pages
actually used of the will; and (d) the fact that
the testator does not appear to have signed all
the sheets in the presence of the three
witnesses, and the latter to have attested and
signed all the sheets in the presence of the
testator and of each other.
As to the signatures on the margin, it is true, as
above stated, that the third page actually used
was signed by the testator, not on the left
margin, as it was by the witnesses, but about
the middle of the page and the end of the will;
and that the fourth page was signed by the
witnesses, not on the left margin, as it was by
the testator, but about the middle of the page
and at the end of the attestation clause.
In this respect the holding of this court in the
case of Avera vs. Garcia and Rodriguez (42
Phil., 145), is applicable, wherein the will in
question was signed by the testator and the
witnesses, not on the left, but right, margin.
The rule laid down in that case is that the
document contained the necessary signatures
on each page, whereby each page of the will
was authenticated and safeguarded against
any possible alteration. In that case, the validity
of the will was sustained, and consequently it
was allowed to probate.
Applying that doctrine to the instant case, we
hold that, as each and every page used of the
will bears the signatures of the testator and the
witnesses, the fact that said signatures do not
all appear on the left margin of each page does
not detract from the validity of the
will.lawphi1.net
Turning to the second defect alleged, that is to
say, the fact that the sheets of the document
are not paged with letters, suffice it to cite the
case of Unson vs. Abella (43 Phil., 494), where
this court held that paging with Arabic
numerals and not with letters, as in the case
before us, is within the spirit of the law and is
just as valid as paging with letters.
As to the proposition that the attestation clause
does not state the number of sheets or pages
of the will, which is the third defect assigned, it
must be noted that the last paragraph of the
will here in question and the attestation clause,
coming next to it, are of the following tenor:
In witness whereof, I set my hand
unto this will here in the town of
Camalig, Albay, Philippine Islands,
this 26th day of November,
nineteen hundred and eighteen,
composed of four sheets, including
the next:
ANTONIO
MOJAL
(Signed and declared by the
testator Don Antonio Mojal to be
his last will and testament in the
presence of each of us, and at the
request of said testator Don
Antonio Mojal, we signed this will
in the presence of each other and
of the testator.)
PEDRO
40
CARO
SILVERIO
Page
 MORCO
ZOILO
MASINAS
As may be seen, the number of sheets is
stated in said last paragraph of the will. It is
true that in the case of Uy Coque vs. Navas L.
Sioca (43 Phil., 405), it was held that the
attestation clause must state the number of
sheets or pages composing the will; but when,
as in the case before us, such fact, while it is
not stated in the attestation clause, appears at
the end of the will proper, so that no
proof aliunde is necessary of the number of the
sheets of the will, then there can be no doubt
that it complies with the intention of the law that
the number of sheets of which the will is
composed be shown by the document itself, to
prevent the number of the sheets of the will
from being unduly increased or decreased.
With regard to the last defect pointed out,
namely, that the testator does not appear to
have signed on all the sheets of the will in the
presence of the three witnesses, and the latter
to have attested and signed on all the sheets in
the presence of the testator and of each other,
it must be noted that in the attestation clause
above set out it is said that the testator signed
the will "in the presence of each of the
witnesses" and the latter signed "in the
presence of each other and of the testator." So
that, as to whether the testator and the
attesting witnesses saw each other sign the
will, such a requirement was clearly and
sufficiently complied with. What is not stated in
this clause is whether the testator and the
witnesses signed all the sheets of the will.
The act of the testator and the witnesses
seeing reciprocally the signing of the will is one
which cannot be proven by the mere exhibition
of the will unless it is stated in the document.
And this fact is expressly stated in the
attestation clause now before us. But the fact
of the testator and the witnesses having
signed all the sheets of the will may be proven
by the mere examination of the document,
although it does not say anything about this,
and if that is the fact, as it is in the instant case,
the danger of fraud in this respect, which is
what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that
the testator and the witnesses signed each and
every page of the will is proven by the mere
examination of the signatures in the will, the
omission to expressly state such evident fact
does not invalidate the will nor prevent its
probate.
The order appealed from is affirmed with the
costs against the appellants. So ordered.
41
Page
G.R. No. L-15025 March 15, 1920
In the matter of the estate of REMIGIA
SAGUINSIN, deceased.
ARCADIO DEL ROSARIO, applicant-
appellant,
JOSE A. DEL PRADO, ET. AL., legatees-
appellants,
vs.
RUFINA SAGUINSIN, opponent-appellee.
Fernando Manikis and Gibbs, McDonough &
Johnson for applicant and appellant.
No appearance for legatees and appellants.
Claro M. Recto for appellee.
ARELLANO, C.J.:
There was presented in the Court of First
Instance of the city of Manila for allowance an
instrument which the petitioner calls the will of
Remigia Saguinsin. It is a manuscript signed
by the alleged testatrix and three witnesses on
October 3, 1918, the conclusion of which says:
"I, the testatrix, sign in the presence of the
witnesses this will written by D. Lino Mendoza
at my request and under my direction." (Yo, la
testadora, firmo en presencia de los testigos
este testamento que ha escrito D. Lino
Mendoza a mi ruego y bajo mi direccion.)--
Then follows a signature and then these
expressions: "The testatrix signed in our
presence and each of us signed in the
presence of the others." (La testadora ha
firmado en nuestra presencia y cada uno de
nosotros en presencia de los demas.) —
"Witness who wrote this will at the request and
under the free and voluntary personal direction
of the testatrix herself." (Testigo que escribio
este testamento a ruego y bajo la libre y
voluntaria direccion personal de la misma
testadora.) (Sgd.) Lino
Mendoza — "Attesting witnesses." (Testigos
del testamento.) Then come three signatures.
These three signature together with that of the
alleged testatrix are written also on the left
margin of the firs page or folio and on the third
page or second folio, but not on the second
page or reverse side of the first page where, as
is seen, the manuscript is continued, the
second folio not containing anything but the
date and the and of the manuscript.
Under these, conditions the instrument was
impugned by a sister of the alleged testatrix
and after the taking of the declaration of the
authors of the signatures which appear three
times and in different parts of the manuscript,
the court declared that the document attached
to the record could not be allowed as a will.
Certain person who allege themselves to be
legatees appealed jointly with the lawyer for
the petitioner.
And upon considering the case on appeal, this
court decides:
That, in conformity with Act No. 2645,
amendatory to section 618 of the Code of Civil
Procedure, the concluding part of the will does
not express what that law, under pain of nullity,
requires. Section 618, as amended, says: "The
attestation shall state the number of sheets or
pages used upon which the will is written . . . ."
None of these requirements appear in the
attesting clause at the end of the document
presented. The second page, i.e., what is
written on the reverse side of the first,
engenders the doubt whether what is written
thereon was ordered written by the alleged
testatrix or was subsequently added by the
same hand that drew the first page and the
date that appears on the third. With this non-
fulfillment alone of Act No. 2645 it is impossible
to allow the so-called will which violates said
law.
That besides this violation there is another as
evident as the preceding. Said Act No. 2645
provides: "The testator or the person requested
by him to write his name and the instrumental
witnesses of the will shall also sign, as
aforesaid, each and every page thereof, on the
left margin, and said pages shall be numbered
correlatively in letters placed on the upper part
of each sheet." The English text differs from
the Spanish text: the former say only pages
(paginas) while the latter puts (hojas). "Hoja,"
according to the Diccionario de la Academia,
"is with respect to books or notebooks folio."
According to the same
dictionary "pagina (page) is each of one of the
two faces or planes of the leaf of a book or
notebook; that which is written or printed on
each page, for example I have read only two
pages of this book." Two pages constitute one
leaf. One page represents only one-half of one
leaf. The English text requires that the
signature which guarantees the genuineness of
the testament shall be placed on the left hand
margin of each page and that each page
should be numbered by letter in the upper part
This requirement is entirely lacking on the
second page that is, on the reverse side of the
first. According to the old method of paging
"folio 1.º y su vto." that is, first folio and the
reverse side, should have been stated, and the
second page would then have been included in
the citation. By the failure to comply with this
requisite the law has been obviously violated.
In the English text the word "pages" does not
leave any room for doubt and it is invariably
used in the text of the law, whereas in the
Spanish text, "hoja" and "pagina" are used
indifferently as may be seen in the following
part which says: "el atestiguamiento hara
constar el numero de hojas o paginas utiles en
42
que esta extendido el testamento." This failure
to comply with the law also vitiates the will and
Page
invalidates it, as the second page is lacking in
authenticity.
This is a defect so radical that there is no way
by which what is written on the reverse side of
the first folio may be held valid. It is possible
that this document consists of only the two
folios numbered 1 and 2, and that on the
reverse side of number 2 nothing may have
been written upon the order of the testatrix, the
testament ending at the foot of the first folio
with the legacy "To my nephew Catalino
Ignacio, pesos 200" (A mi sobrino Catalino
Ignacio doscientos pesos) and from that part
then immediately follows folio No. 2 — "Manila
a tres de Octubre de mil novecientos diez y
ocho.--Yo la testadora firmo en presencia etc."
(Manila, October 3, 1918, — I, the testatrix,
sign in the presence of etc.) There is nothing
which guarantees all the contents of page 2.
The margin of this page is absolutely blank.
there is nothing which gives the assurance that
the testatrix ordered the insertion of all the
contents of page 2. It may very well be that it
was subsequently added thereby substituting
the will of the testatrix, a result for the
prevention of which this manner of authenticity
by affixing the signature on each page and not
merely on each folio was provided for by law.
This defect is radical and totally vitiates the
testament. It is not enough that the signatures
guaranteeing authenticity should appear upon
two folios or leaves; three pages having been
written, the authenticity of all three of them
should be guaranteed with the signature of the
alleged testatrix and her witnesses. The
English text which requires the signing of
pages and not merely leaves or folios should
prevail. it is so provided in section 15 of the
Administrative Code (Act No. 2711).
The judgment appealed from is affirmed, with
costs of this instance against the appellant.
43
Page
G.R. No. 15566 September 14, 1921
EUTIQUIA AVERA, petitioner-appellee,
vs.
MARINO GARCIA, and JUAN RODRIGUEZ,
as guardian of the minors Cesar Garcia and
Jose Garcia,objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J.:
In proceedings in the court below, instituted by
Eutiquia Avera for probate of the will of one
Esteban Garcia, contest was made by Marino
Garcia and Juan Rodriguez, the latter in the
capacity of guardian for the minors Jose Garcia
and Cesar Garcia. Upon the date appointed for
the hearing, the proponent of the will
introduced one of the three attesting witnesses
who testified — with details not necessary to
be here specified — that the will was executed
with all necessary external formalities, and that
the testator was at the time in full possession
of disposing faculties. Upon the latter point the
witness was corroborated by the person who
wrote the will at the request of the testator.
Two of the attesting witnesses were not
introduced, nor was their absence accounted
for by the proponent of the will.
When the proponent rested the attorney for the
opposition introduced a single witness whose
testimony tended to show in a vague and
indecisive manner that at the time the will was
made the testator was so debilitated as to be
unable to comprehend what he was about.
After the cause had been submitted for
determination upon the proof thus presented,
the trial judge found that the testator at the time
of the making of the will was of sound mind
and disposing memory and that the will had
been properly executed. He accordingly
admitted the will to probate.
From this judgment an appeal was taken in
behalf of the persons contesting the will, and
the only errors here assigned have reference
to the two following points, namely, first,
whether a will can be admitted to probate,
where opposition is made, upon the proof of a
single attesting witness, without producing or
accounting for the absence of the other two;
and, secondly, whether the will in question is
rendered invalid by reason of the fact that the
signature of the testator and of the three
attesting witnesses are written on the right
margin of each page of the will instead of the
left margin.
Upon the first point, while it is undoubtedly true
that an uncontested will bay be proved by the
testimony of only one of the three attesting
witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the
American and English authorities that when a
contest is instituted, all of the attesting
witnesses must be examined, if alive and
within reach of the process of the court.
In the present case no explanation was made
at the trial as to why all three of the attesting
witnesses were not produced, but the probable
reason is found in the fact that, although the
petition for the probate of this will had been
pending from December 21, 1917, until the
date set for the hearing, which was April 5,
1919, no formal contest was entered until the
very day set for the hearing; and it is probable
that the attorney for the proponent, believing in
good faith the probate would not be contested,
repaired to the court with only one of the three
attesting witnesses at hand, and upon finding
that the will was contested, incautiously
permitted the case to go to proof without
asking for a postponement of the trial in order
that he might produce all the attesting
witnesses.
Although this circumstance may explain why
the three witnesses were not produced, it does
not in itself supply any basis for changing the
rule expounded in the case above referred to;
and were it not for a fact now to be mentioned,
this court would probably be compelled to
reverse this case on the ground that the
execution of the will had not been proved by a
sufficient number of attesting witnesses.
It appears, however, that this point was not
raised by the appellant in the lower court either
upon the submission of the cause for
determination in that court or upon the
occasion of the filing of the motion for a new
trial. Accordingly it is insisted for the appellee
that this question cannot now be raised for the
first time in this court. We believe this point is
well taken, and the first assignment of error
must be declared not be well taken. This exact
question has been decided by the Supreme
Court of California adversely to the contention
of the appellant, and we see no reason why the
same rule of practice should not be observed
by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the
appellate tribunals are disinclined to permit
certain questions to be raised for the first time
in the second instance. In the first place it
eliminates the judicial criterion of the Court of
First Instance upon the point there presented
and makes the appellate court in effect a court
of first instance with reference to that point,
unless the case is remanded for a new trial. In
the second place, it permits, if it does not
encourage, attorneys to trifle with the
administration of justice by concealing from the
trial court and from their opponent the actual
point upon which reliance is placed, while they
44
are engaged in other discussions more
Page
simulated than real. These considerations are,
we think, decisive.
In ruling upon the point above presented we do
not wish to be understood as laying down any
hard and fast rule that would prove an
embarrassment to this court in the
administration of justice in the future. In one
way or another we are constantly here
considering aspects of cases and applying
doctrines which have escaped the attention of
all persons concerned in the litigation below;
and this is necessary if this court is to
contribute the part due from it in the correct
decision of the cases brought before it. What
we mean to declare is that when we believe
that substantial justice has been done in the
Court of First Instance, and the point relied on
for reversal in this court appears to be one
which ought properly to have been presented
in that court, we will in the exercise of a sound
discretion ignore such question relates a defect
which might have been cured in the Court of
First Instance if attention had been called to it
there. In the present case, if the appellant had
raised this question in the lower court, either at
the hearing or upon a motion for a new trial,
that court would have had the power, and it
would have been is duty, considering the tardy
institution of the contest, to have granted a new
trial in order that all the witnesses to the will
might be brought into court. But instead of thus
calling the error to the attention of the court
and his adversary, the point is first raised by
the appellant in this court. We hold that this is
too late.
Properly understood, the case of
Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it
appears from the opinion in that case that the
proponent of the will had obtained an order for
a republication and new trial for the avowed
purpose of presenting the two additional
attesting witnesses who had not been
previously examined, but nevertheless
subsequently failed without any apparent
reason to take their testimony. Both parties in
that case were therefore fully apprised that the
question of the number of witnesses necessary
to prove the will was in issue in the lower court.
The second point involved in this case is
whether, under section 618 of the Code of Civil
Procedure, as amended by Act No. 2645, it is
essential to the validity of a will in this
jurisdiction that the names of the testator and
the instrumental witnesses should be written
on the left margin of each page, as required in
said Act, and not upon the right margin, as in
the will now before us; and upon this we are of
the opinion that the will in question is valid. It is
true that the statute says that the testator and
the instrumental witnesses shall sign their
names on the left margin of each and every
page; and it is undeniable that the general
doctrine is to the effect that all statutory
requirements as to the execution of wills must
be fully complied with. The same doctrine is
also deducible from cases heretofore decided
by this court.
Still some details at times creep into legislative
enactments which are so trivial it would be
absurd to suppose that the Legislature could
have attached any decisive importance to
them. The provision to the effect that the
signatures of the testator and witnesses shall
be written on the left margin of each page —
rather than on the right margin — seems to be
this character. So far as concerns the
authentication of the will, and of every part
thereof, it can make no possible difference
whether the names appear on the left or no the
right margin, provided they are on one or the
other. In Caraig vs. Tatlonghari (R. G. No.
12558, decided March 23, 1918, not reported),
this court declared a will void which was totally
lacking in the signatures required to be written
on its several pages; and in the case of Re
estate of Saguinsin (41 Phil., 875), a will was
likewise declared void which contained the
necessary signatures on the margin of each
leaf ( folio), but not in the margin of each page
containing written matter.
The instrument now before us contains the
necessary signatures on every page, and the
only point of deviation from the requirement of
the statute is that these signatures appear in
the right margin instead of the left. By the
mode of signing adopted every page and
provision of the will is authenticated and
guarded from possible alteration in exactly the
same degree that it would have been protected
by being signed in the left margin; and the
resources of casuistry could be exhausted
without discovering the slightest difference
between the consequences of affixing the
signatures in one margin or the other.
The same could not be said of a case like that
of Estate of Saguinsin, supra, where only the
leaves, or alternate pages, were signed and
not each written page; for as observed in that
case by our late lamented Chief Justice, it was
possible that in the will as there originally
executed by the testratrix only the alternative
pages had been used, leaving blanks on the
reverse sides, which conceivably might have
been filled in subsequently.
The controlling considerations on the point now
before us were well stated In Re will of
Abangan (40 Phil., 476, 479), where the court,
speaking through Mr. Justice Avanceña, in a
case where the signatures were placed at the
45
bottom of the page and not in the margin, said:
Page
 The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid substitution o will and
testaments and to guarantee their truth
and authenticity. Therefore the laws on
this subject should be interpreted in
such a way as to attain these primordial
ends. 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 last will, must
be disregarded.
In the case before us, where ingenuity could
not suggest any possible prejudice to any
person, as attendant upon the actual deviation
from the letter of the law, such deviation must
be considered too trivial to invalidate the
instrument.
It results that the legal errors assigned are not
sustainable, and the judgment appealed from
will be affirmed. It is so ordered, with costs
against the appellants.

46
Page
G.R. No. L-14322 February 25, 1960
In the matter of the TESTATE ESTATE OF
PETRONILA TAMPOY, deceased,
vs.
DIOSDADA ALBERASTINE, petitioner-
appellant.
Agustin Y. Kintanar for appellant.
BAUTISTA ANGELO, J.:
This concerns the probate of a document
which purports to be the last will and testament
of one Petronila Tampoy. After the petition was
published in accordance with law and petitioner
had presented oral and documentaryevidence,
the trial court denied the petition on the ground
that the left hand margin of the first of the will
does not bear the thumbmark of the testatrix.
Petitioner appealed from this ruling but the
Court of Appeals certified the case to us
because it involves purely a question of law.
The facts of this case as found by the trial court
as follows:
De las pruebas resulta que Petronila
Tampoy, ya viuda y sin hijos, rogo a
Bonigfacio Miñoza que la leyera el
testamento Exhibito A y la expicara su
contenido en su casa en al calle San
Miguel, del municipio de Argao,
provincia de Cebu, en 19 de noviember
de 1939, y lasi lo hizo Bonifacio Miñoza
en presencia de los tres testigos
instrumentales, Rosario K. Chan,
Mauricio de la Peña y Simeon Omboy, y
despues de conformarse con el
contendido del testamento, ella rogo a
Bonifacio Miñoza, que escribiera su
nombre al pie del testamento, en la
pagina segunda, y asi lo hizo Bonifacio
Miñoza, y despues ella estampo su
marca digital entra su nombre y apelido
en presencia de todos y cada uno de los
tres testigos instrumentales, Rosario K.
Chan, Mauricio de la Peña y Simeon
Omboy y de Bonifacio Miñoza, y
despues, Bonifacio Miñoza firmo
tambien al pie del todos y cada uno de
lo tres testigos arriba nombrados. La
testadora asi como Bonifacio Miñoza
parte de la primera pagina del
testamento qeu se halla compuesto de
dos paginas. Todos y cada uno de los
tres testigos instrumentales, Rosario K.
Chan, Mauricio de la Peña y Simeon
Omboy, firmaron al pie de la clausula de
atestiguamiento que esta escrita en la
pagina segunda del testamento y en la
margen izquierda de la misma pagina 2
y de la pagina primera en presencia de
la testadora, de Bonifacio Miñoza, del
abogado Kintanar y de todos y cada uno
de ellos. El testamento fue otorgado por
la testadora libre y expontaneament, sin
haber sido amenazada, forzada o
intimidada, y sin haberse ejercido sobre
ella influencia indebida, estando la
misma en pleno uso de sus facultades
mentales y disfrutando de buena salud.
La testadore fallecio en su case en
Argao en 22 de febrero de 1957 (Vease
certificado de defuncion Exhibito B). La
heredera instituida en el testamento,
Carmen Alberastine, murio dos
semanas despues que la testadora, o
sea en 7 de Marzo de 1957, dejando a
su madre, la solicitante Diosdada
Alberastine.
The above facts are not controverted, there
being no opposition to the probate of the will.
However, the trial court denied the petition on
the ground that the first page of the will does
not bear the thumbmark of the testatrix.
Petitioner now prays that this ruling be set
aside for the reason that, although the first
page of the will does not bear the thumbmark
of the testatrix, the same however expresses
her true intention to givethe property to her
whose claims remains undisputed. She wishes
to emphasize that no one has filed any to the
opposition to the probate of the will and that
while the first page does not bear the
thumbmark of the testatrix, the second
however bears her thumbmark and both pages
were signed by the three testimonial witnesses.
Moreover, despite the fact that the petition for
probate is unoppossed, the three testimonial
witnesses testified and manifested to the court
that the document expresses the true and
voluntary will of the deceased.
This contention cannot be sustained as it runs
counter to the express provision of the law.
Thus, Section 618 of Act 190, as amended,
requires that the testator sign the will and each
and every page thereof in the presence of the
witnesses, and that the latter sign the will and
each and every page thereof in the presence of
the testator and of each other, which
requirement should be expressed in the
attestation clause. This requirement is
mandatory, for failure to comply with it is fatal
to the validity of the will (Rodriguez vs. Alcala,
55 Phil., 150). Thus, it has been held that
"Statutes prescribing the formalities to be
observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at page
1097, 'A will must be executed in accordance
with the statutory requirements; otherwise it is
entirely void.' All these requirements stand as
of equal importance and must be observed,
and courts cannot supply the defective
execution of a will. No power or discretion is
vested in them, either to superadd other
47
conditions or dispence with those enumerated
in the statutes" (Uy Coque vs. Navas L. Sioca,
Page
43 Phil., 405, 407; See also Saño vs.
Quintana, 48 Phil., 506; Gumban vs. Gorecho,
50 Phil., 30; Quinto vs. Morata, 54 Phil., 481).
Since the will in question suffers from the fatal
defect that it does not bear the thumbmark of
the testatrix on its first page even if it bears the
signature of the three instrumental witnesses,
we cannot escape the conclusion that the
same fails to comply with the law and
therefore, cannot be admitted to probate.
Wherefore, the order appealed from is
affirmed, without pronouncement as to costs.

48
Page
G.R. No. 17857 June 12, 1922
In re will of Josefa Zalamea y Abella,
deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-
appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for
appellee.
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y
Abella, single, 60 years old, who was residing
in the municipality of Pagsanjan, Province of
Laguna, executed her last will and testament
with an attached inventory of her properties,
Exhibits A and A-1, in the presence of three
witnesses, who signed with her all the pages of
said documents. The testatrix died on the 6th
of January, 1921, and, as the record shows,
the executor appointed in the will, Pedro
Unson, filed in the court of First Instance of
Laguna on the 19th of January of the same
year an application for the probate of the will
and the issuance of the proper letters of
administration in his favor.
To said application an opposition was presently
by Antonio Abella, Ignacia Abella, Avicencia
Abella, and Santiago Vito, alleging that the
supposed will of the deceased Zalamea was
not executed in conformity with the provinces
of the law, inasmuch as it was not paged
correlatively in letters, nor was there any
attestation clause in it, nor was it signed by the
testatrix and the witnesses in the presence of
each other.
Trial having been held, the judge a quo
overruled the opposition of the contestants,
and ordered the probate of the will, Exhibit A,
and the inventory, Exhibit A-1, holding that
both documents contained the true and last will
of the deceased Josefa Zalamea.
From the judgment of the court below, the
contestants have appealed, and in their brief
they assign three errors, which, in their opinion,
justify the reversal of the judgment appealed
from.
The first error assigned by the appellants as
committed by the court below is its finding to
the effect that Exhibit A, said to be the will of
the deceased Josefa Zalamea, was executed
with all the solemnities required by the law.
The arguments advanced by appellants'
counsel in support of the first assignment of
error tend to impeach the credibility of the
witnesses for the proponent, specially that of
Eugenio Zalamea. We have made a careful
examination of the evidence, but have not
found anything that would justify us in
disturbing the finding of the courta quo. The
attesting witnesses, Eugenio Zalamea and
Gonzalo Abaya, clearly testify that together
with the other witness to the will, Pedro de
Jesus, they did sign each and every page of
the will and of the inventory in the presence of
each other and of the testatrix, as the latter did
likewise sign all the pages of the will and of the
inventory in their presence.
In their brief the appellants intimate that one of
the pages of the will was not signed by the
testatrix, nor by the witnesses on the day of the
execution of the will, that is, on the 19th of July,
1918, basing their contention on the testimony
of Aurelio Palileo, who says that on one
occasion Gonzalo Abaya told him that one of
the pages of the will had not been signed by
the witnesses, nor by the testatrix on the day of
its execution. Palileo's testimony is entirely
contradicted by Gonzalo Abaya not only in the
direct, but in the rebuttal, evidence as well. To
our mind, Palileo's testimony cannot prevail
over that of the attesting witnesses, Gonzalo
Avaya and Eugenio Zalamea. The appellants
impeach the credibility of Eugenio Zalamea, for
having made a sworn declaration before the
justice of the peace of Santa Cruz, Laguna,
before the trial of this case, to the effect that he
was really one of the witnesses to the will in
question, which fact was corroborated by
himself at the trial. The appellants take
Zalamea's testimony in connection with the
dismissal of a criminal case against a nephew
of his, in whose success he was interested,
and infer from this fact the partiality of his
testimony. We deem this allegation of little
importance to impeach the credibility of the
witness Zalamea, especially because his
testimony is corroborated by the other attesting
witness. Gonzalo Abaya, and by attorney Luis
Abaya, who had prepared the testament at the
instance of the testatrix. The foregoing is
sufficient for us to conclude that the first
assignment of error made by the appellants is
groundless.
The appellants contend that the court below
erred in admitting the will to probate
notwithstanding the omission of the proponent
to produce one of the attesting witnesses.
At the trial of this case the attorneys for the
proponent stated to the court that they had
necessarily to omit the testimony of Pedro de
Jesus, one of the persons who appear to have
witnessed the execution of the will, for there
were reasonable grounds to believe that said
witness was openly hostile to the proponent,
inasmuch as since the announcement of the
trial of the petition for the probate of the will,
said witness has been in frequent
communication with the contestants and their
attorney, and has refused to hold any
49
conference with the attorneys for the
proponent. In reply to this, the attorney for the
Page
contestants, said to the court, "without
discussing for the present whether or not in
view of those facts (the facts mentioned by the
attorneys for the petitioner), in the hypothesis
that the same are proven, they are relieved
from producing that witness, for while it is a
matter not decided, it is a recognized rule that
the fact that a witness is hostile does not justify
a party to omit his testimony; without
discussing this, I say, I move that said
statement be stricken out, and if the proponent
wants these facts to stand to stand in the
record, let him prove them." The court a
quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the
appellants did not take any exception.
In the case of Avera vs. Garcia and
Rodriguez (42 Phil., 145), recently decided by
this court, in deciding the question whether a
will can be admitted to probate, where
opposition is made, upon the proof of a single
attesting witness, without producing or
accounting for the absence of the other two, it
was said; "while it is undoubtedly true that an
uncontested will may be proved by the
testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs.
Delfinado (34 Phil., 291), this court declared
after an elaborate examination of the American
and English authorities that when a contest is
instituted, all of the attesting witnesses must be
examined, if alive and within reach of the
process of the court.
In the present case no explanation was
made at the trial as to why all three of
the attesting witnesses were not
produced, but the probable reason is
found in the fact that, although the
petition for the probate of this will had
been pending from December 21, 1917,
until the date set for the hearing, which
was April 5, 1919, no formal contest was
entered until the very day set for the
hearing; and it is probable that the
attorney for the • proponent, believing
in good faith that probate would not be
contested, repaired to the court with
only one of the three attesting witnesses
at hand, and upon finding that the will
was contested, incautiously permitted
the case to go to proof without asking
for a postponement of the trial in order
that he might produce all the attesting
witnesses.
Although this circumstance may explain
why the three witnesses were not
produced, it does not in itself supply any
basis for changing the rule expounded
in the case above referred to; and were
it not for a fact now to be mentioned,
this court would probably be compelled
to reverse this case on the ground that
the execution of the will had not been
proved by a sufficient number of
attesting witnesses.
It appears, however, that this point was
not raised by the appellant in the lower
court either upon the submission of the
cause for determination in that court or
upon the occasion of the filing of the
motion for a new trial. Accordingly it is
insisted for the appellee that this
question cannot now be raised for t he
first time in this court. We believe this
point is well taken, and the first
assignment of error must be declared
not to be well taken. This exact question
has been decided by the Supreme Court
of California adversely to the contention
of the appellant, and we see no reason
why the same rule of practice should not
be observed by us. (Estate of McCarty,
58 Cal., 335, 337.)
There are at least two reasons why the
appellate tribunals are disinclined to
permit certain questions to be raised for
the first time in the second instance. In
the first place it eliminates the judicial
criterion of the Court of First Instance
upon the point there presented and
makes the appellate court in effect a
court of first instance with reference to
that point, unless the case is remanded
for a new trial. In the second place, it
permits, if it does not encourage,
attorneys to trifle with the administration
of justice by concealing from the trial
court and from their opponent the actual
point upon which reliance is placed,
while they are engaged in other
discussions more simulated than real.
These considerations are, we think,
decisive.
In ruling upon the point above presented
we do not wish to be understood as
laying down any hard and fast rule that
would prove an embarrassment to this
court in the administration of justice in
the future. In one way or another we are
constantly here considering aspects of
cases and applying doctrines which
have escaped the attention of all
persons concerned in the litigation
below; and this is necessary if this court
is to contribute the part due from it in the
correct decision of the cases brought
before it. What we mean to declare is
that when we believe that substantial
justice has been done in the Court of
First Instance, and the point relied on for
50
reversal in this court appears to be one
which ought properly to have been
Page
 presented in that court, we will in the
exercise of a sound discretion ignore
such question upon appeal; and this is
the more proper when the question
relates to a defect which might have
been cured in the Court of First Instance
if attention had been called to it there. In
the present case, if the appellant had
raised this question in the lower court,
either at the hearing or upon a motion
for a new trial, that court would have
had the power, and it would have been
its duty, considering the tardy institution
of the contest, to have granted a new
trial in order that all the witnesses to the
will might be brought into court. But
instead of thus calling the error to the
attention of the court and his adversary,
the point is first raised by the appellant
in this court. We hold that this is too late.
Properly understood, the case
of Cabang vs. Delfinado, supra,
contains nothing inconsistent with the
ruling we now make, for it appears from
the opinion in that case that the
proponent of the will had obtained an
order for a republication and new trial for
the avowed purpose of presenting the
two additional attesting witnesses who
had not been previously examined, but
nevertheless subsequently failed without
any apparent reason to take their
testimony. Both parties in that case
were therefore fully apprised that the
question of the number of witnesses
necessar to prove the will was in issue
in the lower court.
In the case at bar, we do not think this question
properly to have been raised at the trial, but in
the memorandum submitted by the attorney for
the appellants to the trial court, he contended
that the will could not be admitted to probate
because one of the witnesses to the will was
not produced, and that the voluntary non-
production of this witness raises a presumption
against the pretension of the proponent. The
trial court found that the evidence introduced
by the proponent, consisting of the testimony of
the two attesting witnesses and the other
witness who was present at the execution, and
had charge of the preparation of the will and
the inventory, Exhibits A and A-1, was
sufficient. As announced in Cabang vs.
Delfinado, supra, the general rule is that,
where opposition is made to the probate of a
will, the attesting witnesses must be produced.
But there are exceptions to this rule, for
instance, when a witness is dead, or cannot be
served with process of the court, or his
reputation for truth has been questioned or he
appears hostile to the cause of the proponent.
In such cases, the will may be admitted to
probate without the testimony of said witness,
if, upon the other proofs adduced in the case,
the court is satisfied that the will has been duly
executed. Wherefore, we find that the non-
production of the attesting witness, Pedro de
Jesus, as accounted for by the attorney for the
proponent at the trial, does not render void the
decree of the court a quo, allowing the probate.
But supposing that said witness, when cited,
had testified adversely to the application, this
would not by itself have change the result
reached by the court a quo, for section 632 of
the Code of Civil Procedure provides that a will
can be admitted to probate, notwithstanding
that one or more witnesses do not remember
having attested it, provided the court is
satisfied upon the evidence adduced that the
will has been executed and signed in the
manner prescribed by the law.
The last error assigned by the appellants is
made to consist in the probate of the inventory,
Exhibit A-1, despite the fact that this exhibit
has no attestation clause in it, and its paging is
made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is
made to the inventory, Exhibit A-1, and at the
bottom of said will, the testatrix Josefa
Zalamea says:
In witness whereof, I sign this will
composed of ten folios including the
page containing the signatures and the
attestation of the witnesses; I have
likewise signed the inventory attached to
this will composed of ten folios in the
presence of Messrs. Gonzalo Abaya,
Eugenio Zalamea, Pedro de Jesus, in
this municipality of Pagsanjan, Laguna,
Philippine Islands, this 19th of July,
1918.
And the attestation clause is as follows:
The foregoing will composed of ten
folios including this one whereunto we
have affixed our signatures, as well as
the inventory of the properties of Doña
Josefa Zalamea y Abella, was read to
Doña Josefa Zalamea y Abella, and the
latter affixed her name to the last, and
each and every page of this will and
inventory composed of ten folios in our
presence; and she declared this to be
her last will and testament and at her
request we have affixed hereunto our
respective signatures in her presence
and in the presence of each other as
witnesses to the will and the inventory
this 19th of July, 1918, at Pagsanjan,
Laguna, P.I.
(Sgd.) GONZALO ABAYA,
51
EUGENIO ZALAMEA,
PEDRO DE JESUS.
Page
In view of the fact that the inventory is referred
to in the will as an integral part of it, we find
that the foregoing attestation clause is in
compliance with section 1 of Act No. 2645,
which requires this solemnity for the validity of
a will, and makes unnecessary any other
attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals,
instead of in letters, we adhere to the doctrine
announced in the case of Aldaba vs. Roque (p.
378, ante), recently decided by this court. In
that case the validity of the will was assailed on
the ground that its folios were paged with the
letters A, B, C, etc., instead of with the letters
"one," two," "three," etc. It was held that this
way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch
as either one of these methods indicates the
correlation of the pages and serves to prevent
the abstraction of any of them. In the course of
the decision, we said: "It might be said that the
object of the law in requiring that the paging be
made in letters is to make falsification more
difficult, but it should be noted that since all the
pages of the testament are signed at the
margin by the testatrix and the witnesses, the
difficulty of forging the signatures in either case
remains the same. In other words the more or
less degree of facility to imitate the writing of
the letters A, B, C, etc., does not make for the
easiness to forge the signatures. And as in the
present case there exists the guaranty of the
authenticity of the testament, consisting in the
signatures on the left margins of the testament
and the paging thereof as declared in the
attestation clause, the holding of this court in
Abangan vs. Abangan (40 Phil., 476), might as
well be repeated:
"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. So when an interpretation
whatsoever, that adds nothing but
demands more requisites entirely
unnecessary, useless, and frustrative of
the testator's last will, must be
disregarded."
In that case the testament was written on one
page, and the attestation clause on another.
Neither one of these pages was numbered in
any way, and it was held: "In a will consisting of
two sheets the first of which contains all the
testamentary dispositions and is signed at the
bottom by the testator and three witnesses,
and the second contains only the attestation
clause and is signed also at the bottom by the
three witnesses it is not necessary that both
sheets be further signed on their margins by
the testator and the witnesses, or be paged."
This means that, according to the particular
case, the emission of paging does not
necessarily render the testament invalid.
The law provides that the numbering of the
pages should be in letters placed on the upper
part of the sheet, but if the paging should be
placed in the lower part, would the testament
be void for this sole reason? We believe not.
The law also provides that the testator and the
witnesses must sign the left margin of each of
the sheets of the testament; but if they should
sign on the right margin, would this fact also
annul the testament? Evidently not. This court
has already held in Avera vs. Garcia and
Rodriguez (42 Phi., 145):
"It is true that the statute says that the
testator and the instrumental witnesses
shall sign their names on the left margin
of each and every page; and it is
undeniable that the general doctrine is
to the effect that all statutory
requirements as to the execution of wills
must be fully complied with. The same
execution for wills must be fully
complied with. The same doctrine is
also deducible from cases heretofore
decided by this court."
"Still some details at time creep into
legislative enactments which are so
trivial that it would be absurd to suppose
that the Legislature could have attached
any decisive importance to them. The
provision to the effect that the
signatures of the testator and witnesses
shall be written on the left margin of
each page — rather than on the margin
— seems to be of this character. So far
as concerns the authentication of the
will, and of every part thereof, it can
make no possible difference whether the
names appear on the left or on the right
margin, provided they are on one or the
other. In Craig vs. Tatlonghari (G. R. No.
12558, decided March 23, 1918, not
reported), this court declared a will void
which was totally lacking in the
signatures required to be written on its
several pages; and in the case of Re
Estate of Saguinsin (41 Phil., 875) a will
was likewise declared void which
contained the necessary signatures on
the margin of each leaf (folio), but not in
52
the margin of each page containing
written matter."
Page
We do not desire to intimate that the
numbering in letters is a requisite of no
importance. But since its principal object is to
give the correlation of the pages, we hold that
his object may be attained by writing one, two,
three, etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should
not be applied where the paging is in Arabic
numerals, instead of in letters, as in the
inventory in question. So that, adhering to the
view taken by this court in the case of Abangan
vs. Abangan, and followed in Aldava vs.
Roque, with regard to the appreciation of the
solemnities of a will, we find that the judgement
appealed from should be, as is hereby,
affirmed with the costs against the appellants.
So ordered.

53
Page
G.R. No. L-17304 May 22, 1922
In re will of Maria Roque y Paraiso,
deceased.
CEFERINO ALDABA, petitioner-appellee,
vs.
LUDOVICO ROQUE, opponent-appellant.
Lucero and Tengo for appellant.
Vicente Platon for appellee.
VILLAMOR, J.:
It appears from the record of the case that on
July 9, 1918, Maria Roque y Paraiso, the
widow of Bruno Valenzuela, resident of the
barrio of Mambog, municipality of Malolos,
Province of Bulacan, executed her last will and
testament in the Tagalog dialect with the help
of Vicente Platon and in the presence of three
witnesses who signed the attestation clause
and each of the four pages of the testament.
Maria Roque died on December 3, 1919, and
when her will was filed in court for probate, it
was contested by Ludovico Roque on the
ground that it had not been prepared nor
executed in conformity with the requirements
and solemnities prescribed by law.
After due proceedings had been had, the Court
of First Instance of Bulacan by its decision
rendered on February 27th of the following
year, pronounced the testament in question
valid, and ordered its probate, appointing
Ceferino Aldaba as the administrator of the
estate.
The errors assigned by the appellant are two,
to wit: "That each and every folio of the said
testament is not paged correlatively in letter,"
and "that the said will lacks the attestation
clause required by law."
We have examined document Exhibit 4 which
is the will in question and we find at the end
thereof the following in Tagalog which
translated into English reads:
This document expresses my last and
spontaneous will, and is my last will and
testament, which was drawn by the
lawyer, Don Vicente Platon, at my
direction, and everything contained in
this testament has been ordained and
directed by me to said Vicente Platon in
order that it might be embodied in this
testament, and after this testament has
been drawn up, I directed him to read it
so that I might hear all its contents, and I
have heard and understood all the
contents of this document which is my
last will, wherefore, and not knowing
how to write, I have requested Don
Vicente Platon to write and sign my
name in my stead hereon; I declare that
this testament is composed of four
sheets, actually used, that the sheets
are paged with the letter A, B, C, and d,
and above my name I have placed the
thumb mark of my right hand in the
presence of the subscribing witnesses,
and that all the witnesses have signed in
my presence and of each other here at
Malolos, Bulacan, this 9th day of the
month of July, 1918; and I also declare
that at my request Don Vicente Platon
has written my name on the left margin
of all pages of this testament, in the
presence of the witnesses, and all the
witnesses have also signed all the
pages of this testament on the left
margin in my presence and that of each
other.
X (Her thumb mark)
MARIA ROQUE Y PARAISO,
Per VICENTE PLATON.
(Sgd.) REGINO E. MENDOZA,
Witness.
(Sgd.) IGNACIO ANIAG,
Witness.
(Sgd.) CEFERINO ALDABA.
Witness.
In reality, it appears that it is the testatrix who
makes the declaration about the points
contained in the above described paragraph;
however, as the witnesses, together with the
testatrix, have signed the said declaration, we
are of the opinion and so hold that the words
above quoted of the testament constitute a
sufficient compliance with the requirements of
section 1 of Act No. 2645 which provides that:
The attestation shall state the number of
sheets or pages used, upon which the
will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter witnessed and
signed the will and all the pages thereof
in the presence of the testator and of
each other.
In regard to the other assignment of error, to
wit, that each of the folios of the said testament
is not paged correlatively in letters "one." "two,"
"three," etc., but only with the letters A, B, C,
etc., we are of the opinion that this method of
indicating the paging of the testament is a
compliance with the spirit of the law, since
either one of the two ways above-mentioned
indicates the correlation of the pages and
serves to prevent the loss of any of them. It
might be said that the object of the law in
requiring that the paging be made in letters is
to make falsification more difficult, but it should
be noted that since all the pages of the
testament are signed at the margin by the
testatrix and the witnesses, the difficulty of
54
forging the signatures in either case remains
the same. In other words the more or less
Page
degree of facility to imitate the writing of the
letters A, B, C, etc., does not make for the
easiness to forge the signature. And as in the
present case there exists the guaranty of the
authenticity of the testament, consisting in the
signatures on the left marging of the testament
and the paging thereof as declared in the
attestation clause, the holding of this court in
Abangan vs. Abangan (40 Phil, 476), might as
well be repeated:
The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud, to avoid substitution of wills and
testaments and to guarantee their truth
and authenticity. Therefore the laws on
this subject should be interpreted in
such a way as to attain these primordial
ends. 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 unnecesary, useless, and
frustrative of the testator's last will, must
be disregarded.
In that case the testament was written on one
page, and the attestation clause on another.
Neither one of these pages was numbered in
any way; and it was held:
In a will consisting of two sheets the first
of which contains all the testamentary
dispositions and is signed at the bottom
by the testator and three witnesses and
the second contains only the attestation
clause and is signed also at the bottom
by the three witnesses, it is not
necessary that both sheets be further
signed on their margings by the testator
and the witnesses, or be paged.
This means that, according to the particular
case, the omission of paging does not
necessarily render the testament invalid.
The law provides that the numbering of the
pages should be in letters placed on the upper
part of the sheet, but if the paging should be
place din the lower part, would the testament
be void for his sole reason? We believe not.
The law also provides that the testator and the
witnesses must sign the left margin of each of
the sheets of the testament; but if they should
sign on the right margin, would this fact also
annul the testament? Evidently not. This court
has already held in Avera vs. Garcia and
Rodriguez (42 Phil., 145):lävvphì1·né+
It is true that the statute says that the
testator and the instrumental witnesses
shall sign their names on the left margin
of each and every page; and it is
undeniable that the general doctrine is
to the effect that all statutory
requirements as to the execution of wills
must be fully complied with. The same
doctrine is also deducible from cases
heretofore decided by this court
Still some details at times creep into
legislative enactments which are so
trivial that it would be absurd to suppose
that the Legislature could have attached
any decisive importance to them. The
provision to the effect that the
signatures of the testator and witnesses
shall be written on the left margin of
each page — rather than on the right
margin — seems to be of this character.
So far as concerns the authentication of
the will, and of every part thereof, it can
make no possible different whether the
names appear on the left or on the right
margin, provided they are on one or the
other. In Caraig vs. Tatlonghari (R. G.
No. 12558, decided March 23, 1918, not
reported), this court declared a will void
which was totally lacking in the
signatures required to be written on its
several pages; and in the case of Re
estate of Saguinsin (41 Phil., 875), a will
was likewise declared void which
contained the necessary signature on
the margin of each left (folio), but not on
the margin of each page containing
written matter.
We do not desire to intimate that the
numbering in letters is a requisite of no
importance. But since its principal object is to
give the correlation of the pages, we hold that
this object may be attained by writing "one."
"two," "three," etc., well as by writing A, B, C,
etc. Following, therefore, the view maintained
by this court in the case ofAbangan vs.
Abangan, supra, as regards the appreciation of
the solemnities of a testament, we decide that
the judgment appealed from must be, as is
hereby, affirmed with costs against the
appellant. So ordered.
55
Page
GR No. L-47931 June 27, 1941
Rev. P. Testamentary the late Eleuterio
Pilapil. ADRIANO MENDOZA, petitioner and
appellee,
vs. CALIXTO Pilapil AND
OTHERS opponents and appellants.
Filemon Sotto D. and D. G. Estenzo
Numeriano representing the appellants.
Messrs. Alonso and Alonso for appellee.
DIAZ, J. :
The main issues that opponents present us for
resolution, to appeal the decision of the Court
of First Instance of Cebu, issued in the record
of testamentary No. 407 of the Court, may be
reduced to following the vessel.
1st Cebu If the court could appoint the March
4, 1939, the appellee as special administrator
of estate of the decedent relict P. Eleuterio
Pilapil (testamentary record No. 407), being as
it was then acting as administrator of the same
goods from the February 7, 1939, the appellant
Calixto Pilapil, who promoted the day before,
the same record Intestate decedent P.
Eleuterio Pilapil, in this Court (file No. 399,
Court of Cebu); Y
2nd If proceeded and proceeds legalization as
a will or living will of the late P. Eleuterio Pilapil,
the car obrante document as Exhibit A that is a
duplicate of the coal Exhibit C.
The relevant facts must be taken into account
in resolving the issues proposed are, as
reflected by the appealed decision and the
same documents as the Court declare to be
last will and testament of the late P. Eleuterio
Pilapil, those below are related :
Father Eleuterio Pilapil, being priest of the
parish of Mualboal of the Province of Cebu,
died in the city of that name on 6 December
1935. absence of any submitted his will after
his death, at least until early February 1939,
his brother Calixto Pilapil promoted the 6th of
such month and year, the record of intestacy
No. 399 to ask fuesenombrado manager of the
relict goods. Received test the request
submitted to elindicado end prior publication of
notices presritos by law, and hearing the court
prior to the quecomparecieron to oppose it,
among which were the same appeal and
Simeona Pilapil, the Court He granted it,
immediately afterwards naming him
administrator of the Intestate. Within a few
days, or the March 4, 1939, the respondent
promoted in turn file No. 407 previously has
been mentioned, to call for the legalization as a
testament of the late P. Eleuterio Pilapil, of
Exhibit A that is doubled to carbon Exhibit C.
There are between the clauses of these two
documents, which are then inserted by its
relevance to the issues raised and also the
importance
I, Eleuterio Pilapil, Priest of natural
Roman Catholic Church, sixty-eight
years old, of Liloan, currently pastor of
the Parish of Mualboal, Province of
Cebu, IF, enjoying health and being of
sound mental faculties, hereby, publish,
declare and grant the following as MY
LAST WILL aND TESTAMENT:
ART. FIRST: I institute and appointed
Mr. Adrian Mendoza, my nephew,
married, of legal age and resident of the
Municipality of Liloan, Cebu Province,
IF, EXECUTOR-executor of this my last
will and testament:Provided , That in
case of impossibility, negligence or
other cause with that embarrasses
enforce this my last will and testament,
through bail, dispose and ordered it
to be replaced in the position of
executor-executor of this my last will
and testament, by my cousin, Jose
Cabatingan, married, of legal age,
resident Municipiop of Mualboal, Cebu
Province, IF, who is responsible and will
make these my following provisions are
met:
xxx xxx xxx
2nd do I have and command this my
Last Will and Testament not be heard by
the Court, since this last will and
testament, simply corroborates claims
and ensures the legitimacy of the
documents for the sale of my property;
xxx xxx xxx
ART. SECOND: Hereby, I note that this
My Last Will and Testament, which
corroborates claims and ensures the
legitimacy of documents by my granted
to buyers consists of two articles; It
contains sixteen provisions and is
written on three pages;
xxx xxx xxx
Cebu, Cebu, IF, nowadays November
27, 1935.
(Signed) ELEUTERIO Pilapil testator ;
at the end thereof (exhibits A and C), there is
this clause Witnessing:
When shall read:
HEALTH,
We who have signed below, we state:
That the pre-insert Last Will and
Testament, has been signed, and jury
declared by the testator, Rev. P.
Eleuterio Pilapil in the presence of all of
us and beg of the testator, we signed
each of us in the presence of us, here in
Cebu, Cebu, IF, nowadays November
56
27, 1935.
(Signed) Pilapil WENCESLAO Witness
Page

MARCELO Pilapil Witness
EUGENE K. Pilapil Witness
The two documents, exhibits A and C, consist
of three pages; and on the left of each of the
first two margin; firms that are at the end of the
main body of these documents and their
attestation clause appear; and they are,
according to the evidence, signatures of the
late P. Eleuterio Pilapil, and witnesses Pilapil
Wenceslas, Marcelo Pilapil and Eugene K.
Pilapil.
In place of the date both of the two documents
and their attestation clause, is written the word
"Cebu" about which try to scrape but may even
be that said "Mualboal"; and also shows the
numeral "27" and the name of more
"November", written the latter on a scraped
word that can even be too without any
difficulty, at least in Exhibit A, which says:
"October". In the last paragraph on page 2
which appears below in the first two lines of the
next page (page 3), which is the last, there is
the following explicit reference: "contains
sixteen provisions and is written on three
pages." At the bottom of the pages (1) and (2)
there is respectively these notes: "Go to page
2."; "Go to page 3.". And it should be noted that
both the one and the other of the
aforementioned Exhibits A and C, no more
than two articles ( "Art. First" and "Art.
Second"), and dieceseis provisions.
The reasons for Appellants rely to argue that
legalization is not appropriate for any of the two
documents expressed as a testament of the
late P. Eleuterio Pilapil, are these:
( A ) They contain erasures and alterations that
explain the respondent stopped;
( B ) That has not been proven that the
decedent - prescindimiento of what is stated in
those documents exhibits A and C - age was
competent to test;
( C ) That has not proved that the deceased
possessed the Spanish is the language in
which these documents are written;
( D ) That one of the clauses of these
documents is no prohibition that aired in slab
Courts;
( E ) That neither has been prepared, signed
and witnessed in accordance with the
provisions of Article 618 of the Code of Civil
Procedure.
With regard to the first question, it must be said
that, according to tells us the same piece of
Appeal of the appellants, both Nos. 399 and
407 records were promoted in two different
Chambers of the Court of First Instance of
Cebu. The first was promoted in Room III; and
the last, in Room II. Upon hearing the Judge of
one of those boards that there was a direct
relationship between daub and another,
provided that the two were known by a single
judge; hence both are considered as one to
avoid what the judge said said, "inconsistency
in the administration of the property of the
deceased," referring to; P. Eleuterio late Pilapil.
Certainly did not lack reason to Cebu court to
appoint special administrator in file No. 407,
the appellee, because there are documents
sought to legalize as a testament and living will
of the late P. Eleuterio Pilapil, has
commissioned express it to be. In addition,
there was not no law that prohibits the courts
hearing a record of testamentary or intestate,
appoint more than one administrator; and, if I
happened is that annulled the appointment of
the appellant as an administrator, then the two
mentioned records were melted. But still; If the
purpose of the appellants in proposing the
question of which we are speaking, is nullifying
the appointment issued to appellee as special
administrator, is vain and futile must be said
purpose, because insisting on the amounts to
be appealing to a court order appointing a
special administrator; and the law does not
allow for appeal against orders of this nature. It
is final disposition of the law that says, "Do not
allow appeal against the appointment of the
special manager." (Art. 660, Law No. 190.)
In addition to all this must be said that if there
was an error in the appointment of the
respondent as special administrator, for the
reason that other property was already
appointed by the court, the error, if such it can
be called, has not been such nature that has
caused any harm to anyone, least of late
Probate P. Eleuterio Pilapil.
Scratches and changes that are noted in
Exhibits A and C are some facts that now, for
the first time, and in this instance, want llamr
attention, when it should have been done while
the case was still in court of its origin. We can
not take them into account in the present state
of the proceedings because, assuming that
already existed then, can and should be,
though not the Court of Cebu, I believe that
these documents did not vitiate said in express
terms; it is presumption rebuttable that "all the
facts concerning the points discussed at trial
were exposed to and appreciated by the
court." (Art. 334, par. 16, Law No. 190.) And
indeed vitiated not because it follows from the
same circumstances, they did just to put things
in their proper place. The two exhibits A and C
were prepared by the late P. Eleuterio Pilapil in
Mualboal where he was parish priest before
being transladado to be treated for his illness
that caused his death, the Southern Islands
57
Hospital of Cebu, where he died. Being based
the Court on these facts proved at trial, I stated
Page
the following: "The intervention of the three
attesting witnesses of the document took place
in a haphazard way, on the occasion in which
they were to visit Eleuterio Pilapil who was ill at
the Southern Islands Hospital, where the
decedent today begged them to act as
witnesses of the document and had then
prepared ".
To prepare the, being in Mualboal, was no
more than natural that expressed in it that
there were prepared, and leave blank the date
but still put the name of the month they were
placed in clean, ie October 1935.
As for the age of the testator and as to whether
he spoke Spanish is the language in which
they are written the two exhibits, or not, it
should be said that being a priest and parish
priest of Mualboal, Cebu, must be presumed
fundademente who had age competent to test,
and understood and spoken the Spanish, then,
is generally known that to be a parish priest,
one must be a priest, and to be, many years of
study in seminaries where Spanish is spoken it
is necessary a language as official as
English. Moreover, no evidence has been
proved that the testator did not understand that
language.
The disposition of the testator that his "Last
Will and Testament not be heard by the court"
can not strip the courts of their authority to
determine whether your will is referred
legalizable or not. They are stakeholders in
one way or another on an issue, which can
confer or remove jurisdiction and authority to
Trubunales to resolve and decide what it wants
law to be resolved and decided. It should be
noted that the law mandates under penalty, to
be delivered to the court the Wills made by a
testator, then this die by the person to whom
custody has been entrusted, so certainly that
can determine whether your legalization and at
the same time to dispose of their property as
mandated therein; or if the contract must be
declared died intestate, not be subject to
legalization which has been granted. (. 626 631
Arts, Law No. 190.) Furthermore, the testator
not being a lawyer, it is not surprising that has
been entered in his will the ban that - using his
own words - "it is aired in court" .
And as to the exhibits A and C can not be
legalized because they were not prepared or
were signed in accordance with the law, saying
that their pages are not numbered with
letters; and because in its clause Witnessing is
not expressed that they were signed by the
three attesting witnesses, in the presence of
the testator, suffice to call attention to the fact
that the bottom of the first page is in letters
note that says clearly: " Go to the 2nd page
"; and the fact that, at the bottom of the second
page, there is this other note: "Go to the 3rd
page"; and suffice also draw attention to the
first two lines of said third page is the last,
where, to complete the provision that is
contained in the last paragraph of the previous
page, or second, it is stated:
. . . It consists of two
articles; contien
sixteen provisions and is written
on three pages,
which agrees faithfully with the true facts as
they appear in the aforementioned two
exhibits, because actually contain two articles
and sixteen provisions, not more, not less.
Witnessing the clause in one and another copy
of the subject matter Testament, by the three
attesting witnesses who signed states that
pre-insert the Last Will and
Testament,
has been signed, declared and
sworn by
the testator, Rev. P. Eleuterio
Pilapil
in the presence of all of us;
and immediately afterwards, it is also stated by
the same witnesses that:
to beg of the testator, we signed
each of us, here in Cebu, Cebu,
IF, nowadays November 27,
1935.
The fraze "to beg of the testator", coupled with
that signed and signed his will in the presence
of attesting witnesses, permits and justifies the
inference that the testator was present when
the last there affixed their respective
signatures.
The purpose of the law to establish the
formalities authenticity required, is undoubtedly
ensure and guarantee their authenticity against
bad faith and fraud, to prevent those who have
no right to succeed the testator will happen and
win-win with the legalization of same. Has
fulfilled that purpose in the case that has been
talked about because, in the same body of the
will and in the same page where the clause
Witnessing appears, that is the third,
expresses the will consists of three pages and
that each one of the first two leads in part the
note in letters, and partly and second pages of
it. These facts clearly excluded all fear,
suspicion, or any hint of doubt that has
replaced some of its pages with another.
Something more than in the case of
Nayve against Mojal and Aguilar (47 Phil. Rep.,
160), which was clarified by the cause of
Gumban against Gorecho and other (50 Phil.
Rep., 31), there is in this case because there
there was but notes: "Pag. 1"; "Page 2."; "Page
3."; and "Pag. 4" on the respective side of the
four pages of which it is composed, and
58
present no data already mentioned and there
is also the record inserted into the first two
Page
lines of the third page of the exhibits A and C,
that they are composed of three pages, and
contain two sixteen articles and provisions.
They are therefore perfect application to
the case that is what we said in the causes of
Rodriguez against Yap, RG No. 45924, May
18, 1939; and Fortunate against De Gorostiza
(57 Phil. Rep., 456). We said in these causes,
respectively, the following:
The wording of the clause Witnessing
this will not technically free repairs, but
is essentially a law enforcement.
We maintain the view that should be
required strict compliance with the
substantive requirements of the will, to
ensure its authenticity, but at the same
time we believe that they should not be
considered defects that can not affect
this end and, on the other part , be
taken into account, could thwart the will
of the
testator.(Rodriguez against Yap, supra .
)
It should not be allowed to legal
formalities hinder the use of good
common sense in considering wills and
frustrate the wishes of the deceased
solemnly expressed in their wills,
regarding the granting of which there is
not even the shadow of bad faith or
fraud. (Fortunate against De
Gorostiza, supra .)
For these reasons, finding appealed according
to law the decision of the Court of First
Instance of Cebu, hereby confirm it,
condemned the appellants to pay the costs. So
it is ordered.

59
Page
G.R. No. L-21151 February 25, 1924
In re will of Antonio Vergel de Dios,
deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and
SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET
AL., opponents-appellees.
ROMUALDEZ, J.:
The question in this case is as to the validity of
the document Exhibit A as a will, which was
propounded by Ramon J. Fernandez for
probate, and contested by Fernando Vergel de
Dios and Francisco, Ricardo and Virgilio
Rustia, the court of First Instance of Manila
having denied its probate.
The applicant takes this appeal, assigning error
to the action of the lower court in holding the
attestation fatally defective and in not finding
Act No. 2645 void.
The defects attributed to the will by the
contestants are as follows, to wit:
(a) It was not sufficiently proven that the
testator knew the contents of the will.
(b) The testator did not sign all the
pages of the will.
(c) He did not request anybody to attest
the document as his last will.
(d) He did not sign it in the presence of
any witness.
(e) The witnesses did not sign it in the
presence of the testator, or of each
other, nor with knowledge on the part of
the testator that they were signing his
will.
(f ) The witnesses did not sign the
attestation clause before the death of
the testator.
(g) This clause was written after the
execution of the dispositive part of the
will and was attached to the will after the
death of the testator.
(h) The signatures of the testator on
page 3 of Exhibit A are not authentic.
The evidence sufficiently shows that when
Attorney Lopez Lizo read the will to the
testator, the latter's mind was perfectly sane
and he understood it: that he signed all the
pages of the will proper, although he did not
sign the page containing the attestation clause;
that while he did not personally call the
witnesses, yet the latter were invited by
Attorney Lopez Lizo to act as such in his
presence. The law does not require that the
testator precisely be the person to request the
witnesses to attest his will. It was also
sufficiently established in the record, beside
being stated in the attestation clause, that the
testator signed the will in the presence of the
three witnesses and that the latter, in turn,
signed it in the presence of the testator and of
each other, the testator knowing that the
witnesses were signing his will; that the
witnesses signed the attestation clause before
the death of the testator; that this clause, with
the names of the witnesses in blank, was
prepared before the testator signed the will,
and that the sheet containing said clause, just
as those of the will proper, was a loose sheet,
and that all the four sheets of which the will
Exhibit A was actually composed were kept
together and are the very ones presented in
this case; and finally, that the signatures of the
testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are
no such defects as those mentioned by the
opponents, and it having been proven that the
testator executed said will in a language known
by him and consciously, freely and
spontaneously, it would seen unnecessary to
go further, and the matter might be brought to
a close right here, by holding the will in
question valid and allowable to probate, were it
not for the fact that the trial court and the
opponents questioned the sufficiency and
validity of the attestation clause because the
sheet on which it is written is not numbered,
and it is not stated there that the testator
signed on the margin of each sheet of the will
in the presence of the three witnesses, or that
the latter signed it is the presence of the
testator and of each other, and specially
because said attestation clause is not signed
by the testator either at the margin or the
bottom thereof.
As to the numbering of the sheet containing the
attestation clause, it is true that it does not
appeal on the upper part of the sheet, but it
does not appear in its text, the pertinent part of
which is copied hereinafter, with the words,
having reference to the number of sheets of
the will, underscored, including the page
number of the attestation:
* * * We certify that the foregoing
document written in Spanish, a
language known by the testator
Antonino Vergel de Dios, consisting
of three sheet actually used,
correlatively enumerated, besides this
sheet . . . .
If, as stated in this clause, the foregoing
document consists of three sheets, besides
that of the clause itself, which is in singular, it is
clear that such a sheet of the attestation clause
is the fourth and that the will, including said
sheet, has four sheets. This description
contained in the clause in question constitutes
60
substantial compliance with the requirements
prescribed by the law regarding the paging. So
Page
it was held by this Court in the case ofAbangan
vs. Abangan (40 Phil., 476), where the sheet
containing the attestation, as well as the
preceding one, was also not paged.
Furthermore the law, as we shall see later on,
does not require that the sheet containing
nothing but the attestation clause, wholly or in
part, be numbered or paged. Consequently this
lack of paging on the attestation sheet does not
take anything from the validity of the will.
Turning now to the question whether or not in
this clause it is stated that the testator signed
on the margin of each sheet of the will, in the
presence of the witnesses and the latter in the
presence of each other, let us see what is said
in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is
as follows:
* * * and he (the testator) signed at the
bottom of the aforesaid will in our
presence and we at his request did the
same in his presence and in that of each
other as witnesses to the will, and lastly,
the testator, as well as we, as
witnesses, signed in the same
manner on the left margin of each sheet.
(Emphasis ours.)
The underscored phrase "in the same manner"
cannot in the instant case mean, and it in fact
means nothing, but that the testator and the
witnesses signed on the left margin of each
sheet of the will "in the same manner" in which
they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and
the latter in the presence of the testator and of
each other. This phrase in the same
manner cannot, in view of the context of the
pertinent part, refer to another thing, and was
used here as a suppletory phrase to include
everything and avoid the repetition of a long
and difficult one, such as what is meant by it.
The same section 618 of the Code of Civil
Procedure, in order to avoid the repetition of
the same long phrase about the testator having
signed in the presence of the witnesses and
the latter in the presence of each other, resorts
to a similar expression in the second
paragraph and says, "as aforesaid."
Concerning the absolute absence of the
signature of the testator from the sheet
containing the attestation clause, this point was
already decided in the above cited case
of Abangan vs. Abangan, where this court held
that:
The testator's signature is not necessary
in the attestation clause because this,
as its name implies, appertains only to
the witnesses and not to the testator.
In that case of Abangan vs. Abangan it was
held that the signature of the testator is not
necessary in the attestation clause, but the
theory is not announced that such a clause is
unnecessary to the validity to the will.
For this reason such doctrine does not annul
the judgment in the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), where in effect
the doctrine, among others, was laid down that
the attestation clause is necessary to the
validity of the will. One of the points on which
greatest stress was laid in that case Uy Coque
is that the requirements of the law regarding
the number of the pages used, the signing of
the will and of each of its pages by the testator
in the presence of three witnesses, and the
attestation and signing of the will and of each
of its pages by the witnesses in the presence
of each other cannot be proven aliunde but by
the attestation clause itself which must express
the complaince of the will with such
requirements. But it was not held in that case
of Uy Coque that the signature of the testator
was necessary in the attestation clause, nor
was such point discussed there, which was the
point at issue in the case of Abangan vs.
Abangan, supra.
The appellees, however, argue that such
clause in the case of Abangan vs.
Abangan begins at the bottom and on the
same sheet in which the testamentary
provision terminated, that is to say, the will
properly speaking. Even then if it is intended to
commit misrepresentation or fraud, which are
the things that with the requirements of the law
for the making and attesting of wills it is
intended to avoid, it is just the same that the
clause; as in the case ofAbangan vs. Abangan,
begins at the bottom of the will properly
speaking, as, like the case before us, it is
wholly contained in a separate sheet. The fact
is that this separate sheet, containing the
attestation clause wholly or in part, is not
signed any place by the testator in the case
of Abangan vs. Abangan, as it is not in the
present case.
Section 618 of the code of Civil Procedure, as
amended by Act No. 2645, contains three
paragraphs, of which the first enumerates in
general terms the requirements to be met by a
will executed after said Code took effect, to wit,
that the language or dialect in which it is written
be known by the testator, that it be signed by
the latter or by another person in the name of
the testator by his express direction and in his
presence, and that it be attested and signed by
three or more credible witnesses in the
presence of the testator and of each other.
These general rules are amplified in the next
two paragraphs as to the special requirements
for the execution of the will by the testator and
the signing thereof by the witnesses, with
61
which the second paragraph of the section
deals, and as to the attestation clause treated
Page
in the third and last paragraph of said section
618.
For this reason the second paragraph of this
section 618 says:
The testator or the person requested by
him to write his name and the
instrumental witnesses of the will, shall
also sign, as aforesaid, each and every
page thereof, on the left margin, and
said pages shall be numbered
correlatively in letters placed on the
upper part of each sheet.
These are the solemnities that must surround
the execution of the will properly speaking,
without any reference whatsoever to the
attestation clause not treated in this second
paragraph. It is in this second paragraph which
deals only with the will (without including the
attestation clause), that the signature or name
of the testator and those of the witnesses are
mentioned as necessary on the left margin of
each and everyone of the sheets of the will (not
of the attestation clause), as well as the paging
of said sheet (of the will, and not of the
attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the
paging of the will also necessary in the
attestation clause? Let us see the last
paragraph of this section 618 of the Code
which already deals with the requirements for
the attestation clause. This last paragraph
reads thus:
The attestation shall state the number of
sheets or pages used, upon which the
will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter witnessed and
signed the will and all pages thereof in
the presence of the testator and of each
other.
As may be seen this last paragraph refers to
the contents of the text of the attestation, not
the requirements or signatures thereof outside
of its text. It does not require that the
attestation be signed by the testator or that the
page or sheet containing it be numbered.
From this analysis of our law now in force it
appears:
First. That the will must have an
attestation clause as a complement,
without which it cannot be probate and
with which only not aliunde (Uy
Coque vs. Navas L. Sioca , supra) may
the requirements to be stated in its text
be proven. The attestation clause must
be prepared and signed, as in the
instant case, on the same occasion on
which the will is prepared and signed, in
such a way that the possibility of fraud,
deceit or suppression of the will or the
attestation clause be reduced to a
minimum; which possibility always
exists, as experience shows, in spite of
the many precautions taken by the
legislator to insure the true and free
expression of one's last will.
Second. That the will is distinct and
different from the attestation, although
both are necessary to the validity of the
will, similar, in our opinion, to
a document which is not public so long
as it is not acknowledged before a
notary, the document being a distinct
and different thing from the
acknowledgment, each of which must
comply with different requisites, among
which is the signature of the maker
which is necessary in the document but
not in the acknowledgment and both
things being necessary to the existence
of the public document.
Third. That the will proper must meet the
requirements enumerated in the second
paragraph of section 618 of the Code of
Civil Procedure.
Fourth. That the text of the attestation
clause must express compliance with
the requirements prescribed for the will.
In the case at bar the attestation clause in
question states that the requirements
prescribed for the will were complied with, and
this is enough for it, as such attestation clause,
to be held as meeting the requirements
prescribed by the law for it.
The fact that in said clause the signature of the
testator does not appear does not affect its
validity, for, as above stated, the law does not
require that it be signed by the testator.
We find no merit in the assignment of error
raising the question as to the validity of Act No.
2645, which is valid. For the purposes of this
decision, it is not necessary to reason out this
conclusion, it being sufficient for the
adjudication of this case to hold the first error
assigned by the appellants to have been
demonstrated.
The foregoing conclusions lead us to hold, as
we do here by hold, that the documents Exhibit
A, as the last will and testament of the
deceased Antonio Vergel de Dios, meets all
the requirements prescribed by the low now in
force and therefore it must be allowed to
probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it
is ordered that the lower court proceed with the
probate of the will Exhibit A in accordance with
law, without express pronouncement as to
62
costs. So ordered.
Page
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S.
LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the
appellant opposed unsuccessfully the probate
of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who
died at the age of 83 in Balayan, Batangas, on
March 3, 1947, almost six months after the
document in question was executed. In the
court below, the present appellant specified
five grounds for his opposition, to wit: (1) that
the deceased never executed the alleged will;
(2) that his signature appearing in said will was
a forgery; (3) that at the time of the execution
of the will, he was wanting in testamentary as
well as mental capacity due to advanced age;
(4) that, if he did ever execute said will, it was
not executed and attested as required by law,
and one of the alleged instrumental witnesses
was incapacitated to act as such; and it was
procured by duress, influence of fear and
threats and undue and improper pressure and
influence on the part of the beneficiaries
instituted therein, principally the testator's
sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud
or trick.
In this instance only one of these objections is
reiterated, formulated in these words: "That the
court a quo erred in holding that the document
Exhibit "A" was executed in all particulars as
required by law." To this objection is added the
alleged error of the court "in allowing the
petitioner to introduce evidence that Exhibit "A"
was written in a language known to the
decedent after petitioner rested his case and
over the vigorous objection of the oppositor.
The will in question comprises two pages, each
of which is written on one side of a separate
sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
The purpose of the law in prescribing the
paging of wills is guard against fraud, and to
afford means of preventing the substitution or
of defecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil., 476.) In the
present case, the omission to put a page
number on the first sheet, if that be necessary,
is supplied by other forms of identification more
trustworthy than the conventional numerical
words or characters. The unnumbered page is
clearly identified as the first page by the
internal sense of its contents considered in
relation to the contents of the second page. By
their meaning and coherence, the first and
second lines on the second page are
undeniably a continuation of the last sentence
of the testament, before the attestation clause,
which starts at the bottom of the preceding
page. Furthermore, the unnumbered page
contains the caption "TESTAMENTO," the
invocation of the Almighty, and a recital that
the testator was in full use of his testamentary
faculty, — all of which, in the logical order of
sequence, precede the direction for the
disposition of the marker's property. Again, as
page two contains only the two lines above
mentioned, the attestation clause, the mark of
the testator and the signatures of the
witnesses, the other sheet can not by any
possibility be taken for other than page
one. Abangan vs. Abangan,supra,
and Fernandez vs. Vergel de Dios, 46 Phil.,
922 are decisive of this issue.
Although not falling within the purview and
scope of the first assignment of error, the
matter of the credibility of the witnesses is
assailed under this heading. On the merits we
do not believe that the appellant's contention
deserves serious consideration. Such
contradictions in the testimony of the
instrumental witnesses as are set out in the
appellant's brief are incidents not all of which
every one of the witnesses can be supposed to
have perceived, or to recall in the same order
in which they occurred.
Everyday life and the result of
investigations made in the field of
experimental psychology show that the
contradictions of witnesses generally
occur in the details of a certain incident,
after a long series of questioning, and
far from being an evidence of falsehood
constitute a demonstration of good faith.
Inasmuch as not all those who witness
an incident are impressed in like
manner, it is but natural that in relating
their impressions they should not agree
in the minor details; hence, the
contradictions in their testimony.
(People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the
instrument instead of signing his name. The
reason for this was that the testator was
suffering from "partial paralysis." While another
in testator's place might have directed
someone else to sign for him, as appellant
contends should have been done, there is
nothing curious or suspicious in the fact that
the testator chose the use of mark as the
means of authenticating his will. It was a matter
of taste or preference. Both ways are good. A
63
statute requiring a will to be "signed" is
satisfied if the signature is made by the
Page
testator's mark. (De Gala vs. Gonzales and the subject other than the fact that the testator
Ona, 53 Phil., 108; 28 R. C. L., 117.) resided in a Tagalog region, from which the
With reference to the second assignment of court said "a presumption arises that said
error, we do not share the opinion that the trial Maria Tapia knew the Tagalog dialect.
court communicated an abuse of discretion in The order of the lower court ordering the
allowing the appellant to offer evidence to probate of the last will and testament of Don
prove knowledge of Spanish by the testator, Sixto Lopez is affirmed, with costs.
the language in which the will is drawn, after
the petitioner had rested his case and after the
opponent had moved for dismissal of the
petition on the ground of insufficiency of
evidence. It is within the discretion of the court
whether or not to admit further evidence after
the party offering the evidence has rested, and
this discretion will not be reviewed except
where it has clearly been abused. (64 C. J.,
160.) More, it is within the sound discretion of
the court whether or not it will allow the case
to be reopened for the further introduction of
evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the
case may be reopened after the court has
announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it
or has denied the same, or after the motion
has been granted, if the order has not been
written, or entered upon the minutes or signed.
(64 C. J., 164.)
In this jurisdiction this rule has been followed.
After the parties have produced their
respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the
furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling
will not be disturbed in the appellate court
where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly
discovered, or where it has been omitted
through inadvertence or mistake, or where the
purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545;
64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to
a misapprehension or oversight.
Although alien to the second assignment of
error, the appellant impugns the will for its
silence on the testator's understanding of the
language used in the testament. There is no
statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This
Court so impliedly ruled in Gonzales vs. Laurel,
46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did
64

not say that the testator knew that idiom. In

fact, there was not even extraneous proof on
Page
EN BANC
[G.R. No. L-2415. July 31, 1950.]
Testate estate of the late Paula Toray.
EUSTAQUIA TENEFRANCIA, Petitioner-
Appellant, v. ROSA ABAJA, Oppositor-
Appellee.
Ditching & Ditching for Petitioner-
Appellant.
Romeo C. Castillo for Oppositor-Appellee.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE FAILS TO
STATE THAT TESTATOR SIGNED WILL IN
THE PRESENCE OF WITNESSES. — Among
the formalities prescribed by law (section 618
of Act No. 190, as amended by Act No. 2645)
to a valid will is the requirement that the
attestation clause should state "the fact that the
testator signed the will and every page thereof,
or caused some other person to write his
name, under his express direction, in the
presence of three witnesses." This requirement
was not complied with in the present case, for
the attestation clause fails to state that fact.
2. ID.; WHAT IS MEANT BY ATTESTATION
CLAUSE. — By the attestation clause is meant
"that clause wherein the witnesses certify that
the instrument has been executed before them,
and the manner of the execution of the same."
(Black, Law Dictionary.) It is signed not by the
testator but by the witnesses, for it is a
declaration made by the witness and not by the
testator. And the law is clear that it is the
attestation clause that must contain a
statement, among others that the testator
signed the will in the presence of the
witnesses. Without that statement, the
attestation clause is fatally defective.
DECISION
REYES, J.:
This is an appeal from an order of the Court of
First Instance of Negros Occidental denying
probate of a will.
The will in question purports to have been
executed in August, 1943, by Paula Toray, who
died the following month. Presented for
probate by one of the legatees, the herein
appellant Eustaquia Tenefrancia, it was
opposed by Rosa Abaja, daughter of the
deceased Eulogia Abaja, instituted heir in an
earlier will executed by the same testatrix and
her deceased husband. The lower court
disallowed the will on the ground that it was not
executed in accordance with law in that the
attestation clause did not state that the testatrix
signed the will in the presence of the
instrumental witnesses.
Among the formalities prescribed by law
(section 618 of Act 190, as amended by Act
No. 2645) to a valid will is the requirement that
the attestation clause should state "the fact that
the testator signed the will and every page
thereof, or caused some other person to write
his name, under his express direction, in the
presence of three witnesses." This requirement
was not complied with in the present case, for
the attestation clause fails to state that fact.
This is obvious from the following agreed
translation of the said attestation
clause:jgc:chanrobles.com.ph
"Nosotros Antonio T. Abanilla, Juan G. Mission
y Juan Tullao, todos vecinos del Barrio
Inayauan, Cawayan, Negros Occidental,
Filipinas, testigos de este testamento,
testificamos que Paula Toray, la testadora que
declaro que este es su testamento o última
voluntad y que cuando otorgo este testamento,
ella estaba en su sano y cabal juicio, habiendo
hecho constar el mismo, en dos pliegos de
papel, firmados por nosotros en presencia de
la testadora, y de nosotros tres testigos en
todos los peligros de este testamento."cralaw
virtua1aw library
It is pointed out, however, that the attestation
clause states that the testatrix declared in the
presence of the three witnesses that the
document in question was her last will or
testament, and it is argued that this testament
taken together with the preceding clause which
reads: "En fe de todo lo cual firmo con mi
nombre este mi testamento o última voluntad,
escrito en dialecto visayo que es el dialecto
que poseo y hablo, en Inayauan, comprensión
de Cawayan, Filipinas, hoy a 16 de Agosto de
1943," expresses the idea ’that the testatrix
signed the will in the presence of the
witnesses. The argument is not only far-
fetched but it also overlooks the fact that it is in
the attestation clause signed the will in the
presence of the subscribing witnesses, since
that is one of the statements by law required to
be embodied in the attestation clause. The
words above quoted, which, in the will in
question, are written above the signature of the
testator and come before the attestation
clause, do not form a part of the latter. By the
attestation clause is meant "that clause
wherein the witnesses certify that the
65
instrument has been executed before them,
and the manner of the execution of the same."
Page
(Black, Law Dictionary.) It is signed not by the
testator but by the witnesses, for it is a
declaration made by the witnesses and not by
the testator. And the law is clear that it is the
attestation clause that must contain a
statement, among others, that the testator
signed the will in the presence of the
witnesses. Without that statement, the
attestation clause is fatally defective.
This defect is not cured by proof aliunde or
even by a judicial finding based upon such
proof that the testator did in fact sign the will in
the presence of the subscribing witnesses.
That is a fact required by law to be stated in
the attestation clause itself, and it is settled that
where it is not so stated it cannot be
established by evidence aliunde, and that
where such evidence has been admitted, even
without opposition, it should not be given the
effect intended. (Uy Coque v. Navas L. Sioca,
43 Phil., 405; Quinto v. Morata, 54 Phil., 481.)
In the case last cited this Court had the
following to say:jgc:chanrobles.com.ph
"It is vigorously contended on behalf of the
appellant, that the alleged defect of the
attestation clause 1 has been cured by oral
evidence, which was admitted without
opposition on the part of the appellee. This
contention cannot be sustained. The doctrine
of this court with reference to statute of frauds
is not applicable to wills. The statute of frauds
relates to contracts and agreements. The
subject of wills and testaments and the
formalities surrounding their execution are
governed by separate and specific provisions
of Act No. 190.
"An examination of section 618 of Act No. 190,
prior to, and after its amendment by Act No.
2645, shows clearly that the legislature
intended to exclude evidence aliunde tending
to establish that the will has been executed
and attested in conformity with the
requirements of the law, where such
compliance does not appear on the face of the
will itself. Prior to its amendments, section 618
contained the following saving clause: ’But the
absence of such form of attestation shall not
render the will invalid if it as proven that the will
was in fact signed and attested as in this
section provided.’
"The most outstanding feature of the
amendment of said section 618 by Act No.
2645 is the elimination of said saving clause
and the greater emphasis laid on the
formalities as to signatures and the attestation
clause. There can be no doubt, therefore, that
the intention of the legislature, in eliminating
said clause, was to exclude evidence aliunde,
and that where such evidence was admitted
without opposition, it should not be given effect
and thus defeat the manifest intention of the
legislature in amending said section 618.
"Section 618 of Act No. 190, as amended,
should be given a strict interpretation. In the
case of Uy Coque v. Navas L. Sioca (43 Phil.,
405) this court, speaking of the construction to
be given to said section,
said:jgc:chanrobles.com.ph
"Statutes prescribing the formalities to be
observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at page
1097, ’A will must be executed in accordance
with the statutory requirements; otherwise it is
entirely void. All these requirements stand as
of equal importance and must be observed,
and courts cannot supply the defective
execution of a will. No power or discretion is
vested in them, either to superadd other
conditions or dispense with those enumerated
in the statutes.’" (Uy Coque v. Navas L. Sioca,
43 Phil., 405, 407.)
It is also urged that the lower court should not
have entertained the opposition of Rosa Abaja,
who had no legal interest in the proceeding.
But it does not appear that timely objection to
the said opposition was made in the court
below, and it is settled that the mere fact that a
stranger has been permitted to oppose the
allowance of a will is not a reversible error and
does not invalidate the proceedings where no
objection is interposed by any of the parties in
interest. (Paras v. Narciso, 35 Phil., 244.) It is
true that in the course of Rosa Abaja’s
declaration, counsel for appellant made some
manifestation tending to question the
admissibility of her testimony. But it is not clear
that the remark was meant to be an objection
to the opposition itself. And in any event, even
without opposition, the lower court could not
have legally allowed the will in question, for
under section 618 of Act No. 190, as amended
by Act No. 2645, no will shall be valid to pass
any estate, real or personal, nor charge or
affect the same unless the attestation clause
conforms to the requirements therein provided,
and the imperative language of the Rules of
Court (Rule 77, section 9 [a]) directs that the
will "shall be disallowed" if not executed and
"attested as required by law."cralaw virtua1aw
library
In view of the foregoing, the order appealed
from is affirmed, with costs against
66
the Appellant.
Page
G.R. No. L-46097 October 18, 1939
TEOFILA ADEVA VIUDA DE
LEYNEZ, petitioner,
vs.
IGNACIO LEYNEZ, respondent.
Conrado V. Sanchez and Ambrosio Padilla for
petitioner.
Ilao and Enriquez for respondent.
LAUREL, J.:
This is a petition for a writ of certiorari to review
the decision of the Court of Appeals affirming
the decision of the Court of First Instance of
Mindoro denying probate of the will of the
deceased Valerio Leynez, on the ground that
its attestation clause does not conform to the
requirements section 618, as amended, of the
Code of Civil Procedure.
The attestation clause of the will is worded as
follows:
Suscrito y declarado por el testador
Valerio Leynez, como su ultima voluntad
y testamento en presencia de todos y
cada uno de nosotros, y a ruego de
dicho testador, firmamos el presente
cada uno en presencia de los otros, o
de los demas y de la del mismo testador
Valerio Leynez . El testamento consta
de los (2) paginas solamente.
The question presented is, under section 618,
as amended, of the Code of Civil Procedure, is
this attestation clause legally sufficient? The
pertinent portion of this section of the Code is
as follows:
. . . the attestation shall state the
number of sheets or pages used, upon
which the will is written, and the fact that
the testator signed the will and every
page thereof, or caused some other
person to write his name, under his
express direction, in the presence of
three witnesses, an the later witnessed
and signed the will and all pages thereof
in the presence of the testator and of
each other.
The alleged defect in the attestation clause of
the controverted will is that it fails to state that
the testator and the three witnesses signed
each and every page of the will in the manner
prescribed by law, because it merely states
"firmanos el presente cada uno en presencia
de los otros, o de los demas y de la del mismo
testador Valerio Leynez." In deciding this
question the Court of Appeals, however, ruled:
A la luz de las jurisprudencias arriba
citadas en la clausada de
atestiguamiento discutida en el asunto
de autos no encontramos un
cumplimiento sustantial del requisito
exigido por la ley, de que en ella se
haga constar que el testador y los
testigos han firmado unos en presencia
de otros, todas y cada una de las
paginas usadas del testamento,
requisito que no se puede establecer
por medio de su prueba aliunde.
Against this conclusion of the Court of Appeals,
petitioner puts forward the contention that it
has decided a question of substance in a way
not probably in accord with the law and the
applicable decisions of this court (Rule 47,
paragraph e [1] of Supreme Court.) The rule of
liberal construction of the applicable law
should, petitioner avers, be held to apply in the
case at bar, and in support of her content on
she invokes a long array of cases (Abangan vs
.Abangan, 40 Phil., 476; Avera vs. Garcia and
Rodriguez, 42 Phil., 145; Aldaba vs. Roque, 43
Phil., 378; Unson vs .Abella, 43 Phil., 494;
Fernandez vs. Vergel de Dios, 46 Phil., 922;
Nayve vs. Mojal, 47 Phil., 152; De Gala vs
.Gonzalez, 53 Phil., 104; Rey vs. Cartagena,
56 Phil., 282; Dichoso de Ticson vs. De
Gorostiza, 57 Phil., 437;
Sebastian vs. Paganiban, 59 Phil., 653; De
Guzman vs. Celestino, G.R. No. 35273, April
25, 1932; Policarpio vs. Baltazar, G.R. No.
36349, November 14, 1932; Malate vs. Olea,
G.R. No. 36154, December 16, 1932; In
re Estate of Jennings, 1933, G.R. No. 38758).
To this line of cases those of
Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939, and Grey vs. Fabie, G.R. No. 45160,
May 23, 1939, may perhaps be added.
Respondent, on the other hand, equally
invokes a number of cases wherein, he
contends, the rule of strict construction was
made to prevail. (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; In re Estate of Neuark, 46
Phil., 841; Saño vs.Quintana, 48 Phil., 506;
Gumban vs. Gorecho, 50 Phil., 30;
Quinto vs. Morata, 54 Phil., 481;
Rodriguez vs. Alcala, 55 Phil., 150.)
This Court has already taken notice of these
different views within, in Dichoso de Ticson vs.
De Gorostiza (57 Phil., 437, 439-440), it frankly
made the following observation : "The truth is
that there have been, noticeable in the
Philippines two divergent tendencies in the law
of wills — the one being planted on strict
construction and the other on liberal
construction. A late example of the former
views may be found in the decision
in Rodriguez vs. Alcala ([1930], 55 Phil., 150),
sanctioning a literal enforcement of the law.
The basic case in the other direction,
predicated on reason, is Abangan vs.
Abangan ([1919], 40 Phil., 476), oft-cited
approvingly in later decisions." It is fairness to
recognize the existence of opposing currents of
67
legal thought, a situation which perhaps has
brought about a certain degree of confusion in
Page
this field. It is also fairness to avow, however,
that a more careful examination of the cases
will show that, while the two tendencies
mentioned in easily discernible, the conflict in
many cases is more apparent than real, and
the variance, if at all, in the application of the
principles involved was due in some instances
to the marked differentiation of facts and the
consequent personal or collective criteria in
particular cases.lâwphi1.nêt
We have taken pains to examine the numerous
cases relied upon by the petitioner and those
relied upon by the respondent, and while we do
not deem it necessary to make a detailed
comparison between them, we find no difficulty
in selecting what we consider is the reasonable
rule to apply in this case at bar. It is, of course,
not possible to lay down a general rule, rigid
and inflexible, which would be applicable to all
cases. More than anything else, the facts and
circumstances of record are to be considered
in the application of any given rule. If the
surrounding circumstances point to a regular
execution of the will, and the instrument
appears to have been executed substantially in
accordance with the requirements of the law,
the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean
towards its admission to probate, although the
document may suffer from some imperfection
of language, or other non-essential defect.
This, in our opinion, is the situation in the
present case, and we, therefore, hold that the
requirement that the attestation clause, among
other things, shall state "that the testator
signed the will and every page thereof in the
presence of three witnesses, and that the
witnesses signed the will in the presence of the
testator and of each other," is sufficiently
complied with, it appearing that the testator
and the witnesses signed each and every page
of the will according to the stipulation of the
parties. (Record on Appeal, stipulation, pp. 10,
14, 15); and this fact being shown in the will
itself, and there being, furthermore, no
question raised as to the authenticity of the
signature of the testator and the witnesses.
An attestation clause is made for the purpose
of preserving, in permanent form, a record of
the facts attending the execution of the will, so
that in case of failure of the memory of the
subscribing witnesses, or other casualty, they
may still be proved. (Thompson on Wills, 2 ed.,
sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the
purpose of the law. The law-making body, in
recognition of the dangers to which
testamentary dispositions are apt to be subject
in the hands of unscrupulous individuals, has
surrounded the execution of the wills with
every solemnity deemed necessary to
safeguard it. This purpose was indicated when
our legislature provided for the exclusion of
evidence aliunde to prove the execution of the
will. We should not, however, attribute the
prohibition as indicative of a desire to impose
unreasonable restraint or beyond what reason
and justice permit. It could not have been the
intention of the legislature in providing for the
essential safeguards in the execution of a will
to shackle the very right of testamentary
disposition which the law recognizes and holds
sacred. The pronouncement of this Court
in Abangan vs. Abangan (40 Phil., 476, 479),
expresses the sound rule to which we have
recently adhered in principle.
(Rodriguez vs. Yap, G.R. No. 45924,
promulgated May 18, 1939; and
Grey vs. Fabie, G.R. No. 45160, promulgated
May 23, 1939):
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. 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 last will, must
be disregarded.
It follows that the writ of certiorari should be, as
it is hereby, granted and the judgment of the
Court of Appeals reversed, with the result that
the controverted will, Exhibit A, of the
deceased Valerio Leynez, shall be admitted to
probate. So ordered, with costs against the
respondent-appellee. So ordered.
68
Page
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR
THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of
Court of First Instance of Southern Leyte,
(Branch III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued
by the Court of First Instance of Southern
Leyte, Branch III, in Special Proceedings No.
R-1713, entitled "In the Matter of the Petition
for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner",
which denied the probate of the will, the motion
for reconsideration and the motion for
appointment of a special administrator.
In the petition for probate filed with the
respondent court, the petitioner attached the
alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary
dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the left
hand margin by the three (3) instrumental
witnesses. The second page which contains
the attestation clause and the acknowledgment
is signed at the end of the attestation clause by
the three (3) attesting witnesses and at the left
hand margin by the testatrix.
Since no opposition was filed after the
petitioner's compliance with the requirement of
publication, the trial court commissioned the
branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will,
who testified on its genuineness and due
execution.
The trial court, thru then Presiding Judge
Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea
Perez for want of a formality in its execution. In
the same order, the petitioner was also
required to submit the names of the intestate
heirs with their corresponding addresses so
that they could be properly notified and could
intervene in the summary settlement of the
estate.
Instead of complying with the order of the trial
court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period
within which to deliberate on any step to be
taken as a result of the disallowance of the will.
He also asked that the ten-day period required
by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration
of the order denying the probate of the will.
However, the motion together with the previous
manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian
due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still
pending resolution when respondent Judge
Avelino S. Rosal assumed the position of
presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the
motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In
the same order of denial, the motion for the
appointment of special administrator was
likewise denied because of the petitioner's
failure to comply with the order requiring him to
submit the names of' the intestate heirs and
their addresses.
The petitioner decided to file the present
petition.
For the validity of a formal notarial will, does
Article 805 of the Civil Code require that the
testatrix and all the three instrumental and
attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one
another?
Article 805 of the Civil Code provides:
Every will, other than a
holographic will, must be
subscribed at the end thereof by
the testator himself or by the
testator's name written by some
other person in his presence, and
by his express direction, and
attested and subscribed by three
or more credible witnesses in the
presence of the testator and of
one another.
The testator or the person
requested by him to write his
name and the instrumental
witnesses of the will, shall also
sign, as aforesaid, each and
every page thereof, except the
last, on the left margin, and all
the pages shall be numbered
correlatively in letters placed on
the upper part of each page.
The attestation shall state the
number of pages used upon
which the will is written, and the
fact that the testator signed the
will and every page thereof, or
caused some other person to
69
write his name, under his express
direction, in the presence of the
Page
 instrumental witnesses, and that
the lacier witnesses and signed
the will and the pages thereof in
the presence of the testator and
of one another.
If the attestation clause is in a
language not known to the
witnesses, it shall be interpreted
to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-
quoted provision of law to require that, for a
notarial will to be valid, it is not enough that
only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at
the same place or at the end, in the presence
of the testatrix and of one another because the
attesting witnesses to a will attest not merely
the will itself but also the signature of the
testator. It is not sufficient compliance to sign
the page, where the end of the will is found, at
the left hand margin of that page.
On the other hand, the petitioner maintains that
Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute
necessity for the extrinsic validity of the wig
that the signatures of the subscribing
witnesses should be specifically located at the
end of the wig after the signature of the
testatrix. He contends that it would be absurd
that the legislature intended to place so heavy
an import on the space or particular location
where the signatures are to be found as long
as this space or particular location wherein the
signatures are found is consistent with good
faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil
Code, the will must be subscribed or signed at
its end by the testator himself or by the
testator's name written by another person in his
presence, and by his express direction, and
attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation
consists in witnessing the testator's execution
of the will in order to see and take note
mentally that those things are, done which the
statute requires for the execution of a will and
that the signature of the testator exists as a
fact. On the other hand, subscription is the
signing of the witnesses' names upon the same
paper for the purpose of Identification of such
paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is
concerned, it is our considered view that the
will in this case was subscribed in a manner
which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses
on the left margin of the first page of the will
attested not only to the genuineness of the
signature of the testatrix but also the due
execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be
desirable, unsubstantial departure from the
usual forms should be ignored, especially
where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444,
449).
The law is to be liberally construed, "the
underlying and fundamental objective
permeating the provisions on the law on wills in
this project consists in the liberalization of the
manner of their execution with the end in view
of giving the testator more freedom in
expressing his last wishes but with sufficient
safeguards and restrictions to prevent the
commission of fraud and the exercise of undue
and improper pressure and influence upon the
testator. This objective is in accord with the
modern tendency in respect to the formalities
in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian
stated in his questioned order that were not for
the defect in the place of signatures of the
witnesses, he would have found the testimony
sufficient to establish the validity of the will.
The objects of attestation and of subscription
were fully met and satisfied in the present case
when the instrumental witnesses signed at the
left margin of the sole page which contains all
the testamentary dispositions, especially so
when the will was properly Identified by
subscribing witness Vicente Timkang to be the
same will executed by the testatrix. There was
no question of fraud or substitution behind the
questioned order.
We have examined the will in question and
noticed that the attestation clause failed to
state the number of pages used in writing the
will. This would have been a fatal defect were it
not for the fact that, in this case, it is
discernible from the entire wig that it is really
and actually composed of only two pages duly
signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page
which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end
or at the bottom while the instrumental
witnesses signed at the left margin. The other
page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself
70
states that "This Last Will and Testament
consists of two pages including this page".
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.
71
Page
G.R. No. L-42258 January 15, 1936 if the signature is made by the testator's mark."
In re Will of the deceased Leoncia (Quoted by this court from 28 R.C.L., p, 117;
Tolentino. De Gala vs. Gonzales and Ona, 53 Phil., 104,
VICTORIO PAYAD, petitioner-appellant, 108.) It is clear, therefore, that it was not
vs. necessary that the attestation clause in
AQUILINA TOLENTINO, oppositor-appellant. question should state that the testatrix
Vicente Foz, Marciano Almario and Leonardo requested Attorney Almario to sign her name
Abola for petitioner-appellant. inasmuch as the testratrix signed the will in
Leodegario Azarraga for oppositor-appellant. question in accordance with law.
GODDARD, J.: The appealed order of the trial court is
Both parties in this case appeal from an order reversed and the questioned will of Leoncia
of the trial court denying the probate of the Tolentino, deceased, is hereby admitted to
alleged will of Leoncia Tolentino, deceased. probate with the costs of this appeal against
That court found that the will in question was the oppositor-appellant.
executed by the deceased on the date
appearing thereon, September 7, 1933, one
day before the death of the testatrix, contrary
to the contention of the oppositor that it was
executed after her death. The court, however,
denied probate on the ground that the
attestation clause was not in conformity with
the requirements of law in that it is not stated
therein that the testatrix caused Attorney
Almario to write her name at her express
direction.
The appeal of the oppositor-appellant is based
upon the alleged failure of the trial court in not
finding that the will in question was executed
after the death of Leoncia Tolentino, or that
she was mentally and physically incapable of
executing said will one day before her death.
After a careful examination of the evidence on
these points we find no reason for setting aside
the conclusion of the trial court as set forth
above. The assignments of the oppositor-
appellant are therefore overruled.
As to the contention of the petitioner-appellant,
as stated above, the trial court denied probate
of the will on the sole ground that the
attestation clause does not state that the
testratrix requested Attorney Almario to write
her name.
The last paragraph of the questioned will reads
in part as follows:
En prueba de todo lo cual, firmo el
presente testamento con mi marcha
digital, poque no puedo estampar mi
firma a causa de mi debilidad, rogando
al abogado M. Almario que poga mi
nombre en el sitio donde he de
estampar mi marcha digital . . ..
The evidence of record established the fact
that Leoncia Tolentino, assisted by Attorney
Almario, placed her thumb mark on each and
every age of time questioned will and the said
attorney merely wrote her name to indicate the
place where she placed said thumb mark. In
other words Attorney Almario did not sign for
the testatrix. She signed for placing her thumb
72

mark on each and every page thereof "A

statute requiring a will to be 'signed' is satisfied
Page
G.R. No. 17430 May 31, 1922
In the matter of the estate of Geronima Uy
Coque, deceased.
ANDREA UY COQUE, ET AL., petitioners-
appellees,
vs.
JUAN NAVAS L. SIOCA, special
administrator of the estate of Geronima Uy
Coque, deceased, opponent-appellant.
Crossfiled & O'Brien for appellant.
Ruperto Kapunan for appellees.
OSTRAND, J.:
This is an appeal from an order of the Court of
First Instance of Samar, admitting a will to
probate.
The validity of the will is attacked on the
ground that the testatrix was mentally
incapacitated at the time of its execution and
on the further ground that it was not executed
on the form prescribed by section 618 of the
Code of Civil Procedure as amended by Act
No. 2645,
The transcript of the testimony taken in the
probate proceedings not appearing in the
record, we cannot review the findings of the
court below as to the sanity of the testatrix.
This leaves for our consideration only the
question as to whether the omission of certain
formalities in the execution of the will are fatal
to its validity.
Section 618 of the Code of Civil Procedure as
amended by Act No. 2645 reads:
No will, except as provided in the
preceding section, shall be valid to pass
any estate, real or personal, nor charge
or affect the same, unless it be written in
the language or dialect known by the
testator and signed by him, or by the
testator's name written by some other
person in his presence, and by his
express direction, and attested and
subscribed by three or more credible
witnesses in the presence of the testator
and of each other. The testator or the
person requested by him to write his
name and the instrumental witnesses of
the will, shall also sign, as aforesaid,
each and every page thereof, on the left
margin, and said pages shall be
numbered correlatively in letters placed
on the upper part of each sheet. The
attestation shall state the number of
sheets or pages used, upon which the
will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter witnessed and
signed the will and all pages thereof in
the presence of the testator and of each
other.
The formal deffects of the will in question occur
in its attestation clause which, in translation,
read as follows:
We, the undersigned witnesses of this
will, state that it has been shown to us
by the testatrix as her last will and
testament. And as she cannot sign her
name, she asked that Mr. Filomeno
Piczon sign her name in the presence of
each of us, and each of us, the
witnesses, also signed in the presence
of the testatrix.
It will be noted that the attestation clause does
not state the number of pages contained in the
will nor does it state that the witnesses signed
in the presence of each other. Neither do these
facts appear in any other part of the will.
Statutes prescribing the formalities to be
observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at page
1097, "A will must be executed in accordance
with the statutory requirements; otherwise it is
entirely void. All these requirements stand as
of equal importance and must be observed,
and courts cannot supply the defective
execution of a will. No power or discretion is
vested in them, either to superadd other
conditions or dispose with those enumerated in
the statutes."
This court has also frequently held that a will
should not be probated unless in its execution
there has been a strict complaince with all the
requisites prescribed in section 618 of the
Code of Civil Produre. It is true that in the case
of Abangan vs. Abangan (40 Phil., 476) the
court upheld the validity of a will consisting of
only two pages, the first containing all the
testamentary dispositions and being signed by
the testator at the bottom and by both the
testator and the witnesses in the margin, the
second page containing only the attestaiton
clause with the signatures of the witnesses at
the bottom but without marginal signatures.
The decision was based on the ground that it
could not have been the intention of the
legislator to require, as an essential to the
validity of the will, that all the signatures appear
twice on the same page as such a requirement
would be entirely purposeless. This decision is
no doubt sound; that in statutory construction
the evident intent of the legislator controls will
probably not be disputed.
But it must not be forgotten that in construing
statutory provisions in regard to the formal
requisites of a will, we are seeking to ascertain
the intent, of the legislator and not that the
testator; the latter's intention is frequently
73
defeated through non-observance of the
statue.
Page
The purpose of the Legislature in prescribing testator and the witnesses signed in the
the rather strict formalities now required in the presence of each other and that the fact cannot
execution of a will are clearly revealed by be proved by evidence aliunde is, perhaps,
comparing section 618, supra, as originally less obvious, but, in view of the well-known
enacted with the amended section quoted unreliability of oral evidence, it is clear that a
above. The original section reads: statement in the attestation clause will afford
No will, except as provided in the more satisfatory evidence of the fact to be
preceding section, shall be valid to pass proven. In any event, the fact that the old rule
any estate, real or personal, nor charge in regard to admissibility or oral evidence to
or affect the same, unless it be in writing prove that the testator and witnesses signed in
and signed by the testator, or by the the manner prescribed by the law evidently had
testator's name written by some other been found unsatisfactory and was deliberately
person in his presence, and by his varied by amendment shows that the
express direction, and attested and Legislature attached importance to the mater. If
subscribed by three or more credible so, the courts will not be justified in enervating
witnesses in the presence of the testator the amendment by too liberal a construction.
and of each other. The attestation shall We therefore hold that the two defects noted in
state the fact that the testator signed the the attestation clause of the alleged will
will, or caused it to be signed by some renders it null and void and that it cannot be
other person, at this express direction, admitted to probate. The order appealed from
in the presence of three witnesses, and is reversed with the costs against the appellee.
that they attested and subscribed it is So ordered.
his presence and in the presence of
each other. But the absence of such
form of attestation shall not render the
will in valid if it is proven that the will
was in fact signed and attested as in this
section provided.
The amendments or changes introduced by
Act No. 2645 are (a) that the will must now be
executed in a language or dialect known to the
testator; (b) that the testator and witnesses
must sign each page on the left margin; (c) that
the pages be numbered correclatively; (d) that
the attestation clause shall state the number
sheets or page used in the will and (e) that it
must appear from the attestation clause itself
that the testator and witnesses signed in the
form and manner required by law and that is
this can no longer be proven by evidence
aliunde.
The changes mentioned under (d) and (e) are
the only ones which need be considered in the
present case. 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 forgoing of the signatures of the
testator and witnesses in the margin, a matter
attended with much greater difficulty.
74

The purpose of the new requirement that it

must appear in the attestation clause that the
Page
G.R. No. L-24556 December 18, 1925
In re will of Victoria Quintana, deceased.
EMILIANO S. SAÑO, petitioner-appellee,
vs.
MAMERTO QUINTANA, ET AL., opponents-
appellants.
Singzon, Salazar & Veloso and Ruperto
Kapunan for appellants.
Emilio Benitez for appellee.

AVANCEÑA, C.J.:
The judgment appealed from allowed the
probate of the will of the deceased Victoria
Quintana executed on March 22, 1924. Without
going into discussion of the points raised by
the parties as to the formalities of this will we
find a sufficient reason for reversing the
judgment appealed from and denying the
probate thereof.
In the attestation clause there is no statement
that the witnesses to the will have signed on
the left margin of each page of the will in the
presence of the testatrix. Section 618 of Act
No. 190, as amended by Act No. 2645,
provides that he attestation clause shall state
the fact that the testator signed the will and all
the pages thereof, or caused another persons
to place his name thereon at his expressed
direction in the presence of the three witnesses
to the will, and that the latter signed the will
and all its pages in the presence of the testator
and of each other. In the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405), this court has
held that the requirement that the attestation
clause must contain the statement that the
witnesses signed in the presence of each other
is imperative and non-comfort in said case in
support of this doctrine may be adduced for
holding that the will is also null and void when
in the attestation clause it does not appear that
the witnesses to the will signed it and every
page thereof on the left margin and in the
presence of the testatrix. In order to insure the
authenticity of a will, which is the object of the
law, it is just as important, if not the most
important, that the witnesses should sign in the
presence of the testator and of each
other.lawphi1.net
The judgment appealed from is reversed, and
the probate of the will of Victoria Quintana is
denied, without special pronouncement as to
costs. So ordered.
75
Page
G.R. No. L-26135 March 3, 1927
In re will of Eustaquio Hagoriles.
PETRONILO GUMBAN, petitioner-appellee,
vs.
INOCENCIA GORECHO, ET AL., opponents-
appellants.
Powell and Hill for appellants.
Padilla, Treñas and Magalona and Francisco,
Lualhati and Lopez for appellee.
MALCOLM, J.:
This is an appeal by the widow, Inocencia
Gorecho, and eighteen other opponents, from
an order of the Court of First Instance of Iloilo
probating the document presented by Petronilo
Gumban as the last will and testament of the
deceased Eustaquio Hagoriles. Among the
errors assigned is included the finding of the
trial court that the alleged will was prepared in
conformity with the law, notwithstanding it did
not contain an attestation clause stating that
the testator and the witnesses signed all the
pages of the will.
In support of their argument on the assignment
of error above-mentioned, appellants rely on a
series of cases of this court beginning with in
the Matter of the Estate of Saguinsin ([1920],
41 Phil., 875), continuing with in In re Will of
Andrada ([1921], 42 Phil., 180), Uy Coque vs.
Navas L. Sioca ([1922], 43 Phil., 405), and In
re Estate of Neumark ([1923], 46 Phil., 841),
and ending with in Saño vs. Quintana ([1925]),
48 Phil., 506). Appelle counters with the
citation of a series of cases beginning
with Abangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque
([1922], 43 Phil., 378), and Fernandez vs.
Vergel de Dios ([1924], 46 Phil., 922, and
culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if possible,
conciliate, the last two decisions cited by
opposing counsel, namely, those of Saño vs.
Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Saño vs. Quintana, supra, it was
decided that an attestation clause which does
not recite that the witnesses signed the will and
each and every page thereof on the left margin
in the presence of the testator is defective, and
such a defect annuls the will. The case of Uy
Coque vs. Sioca, supra, was cited, but the
case ofNayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision
in Nayve vs. Mojal and Aguilar,supra, wherein
it was held that the attestation clause must
state the fact that the testator and the
witnesses reciprocally saw the signing of the
will, for such an act cannot be proved by the
mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the
testator and the witnesses signed each and
every page of the will can be proved also by
the mere examination of the signatures
appearing on the document itself, and the
omission to state such evident fact does not
invalidate the will.
It is a habit of courts to reaffirm or distinguish
previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless
aided by casuistry of the extreme type, it would
be impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely
on the other, we reverse.
In resolving this puzzling question of authority,
three outstanding points may be mentioned. In
the first place, the Mojal decision was
concurred in by only four members of the court,
less than a majority, with two strong dissenting
opinions; the Quintana decisions was
concurred in by seven members of the court, a
clear majority, with one formal dissent. In the
second place, the Mojal decision was
promulgated in December, 1924; the Quintana
decision was thus subsequent in point of time.
And in the third place, the Quintana decision is
believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is
governed entirely by statute. The law of the
case is here found in section 618 of the Code
of Civil procedure, as amended by Act No.
2645, and in section 634 of the same Code, as
unamended. It is part provided in section 618,
as amended, that "No will . . . shall be valid . .
. unless . . . ." It is further provided in the same
section that "The attestation shall state the
number of sheets or pages used, upon which
the will and every page thereof, or caused
some other person to write his name, under his
express direction, in the presence of three
witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of
the testator and of each other." Codal section
634 provides that " The will shall be disallowed
in either of the following cases: 1.
If not executed and attested as in this Act
provided." The law not alone carefully makes
use of the imperative, but cautiously goes
further and makes use of the negative, to
enforce legislative intention. It is not within the
province of the courts to disregard the
legislative purpose so emphatically and clearly
expressed.
We adopt and reaffirm the decision in the case
of Saño vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case
of Nayve vs. Mojal and Aguilar, supra.
It may not be said here that our ruling is
predicated on technicality or injustice. The will
76
in question was formulated in a medley of three
languages, Visayan, English , and Spanish.
Page
Suspicious circumstances surrounded the
making of the will by the bedridden old man,
who is alleged to have signed it. However, no
express pronouncements on the two important
questions relating to the language of the will
and the testamentary capacity of the deceased
are required.
The order appealed from will be reversed, and
the document Exhibit A disallowed as a will,
without special pronouncement as to costs in
either instance. So ordered.

77
Page
G.R. No. L-31732 February 19, 1930
Estate of the deceased Gregorio Pueblo.
CARMEN QUINTO, applicant-appellant,
vs.
MARGARITA MORATA, in substitution of
Mateo Pueblo, deceased, contestant-
appellee.
Guevara, Francisco and Recto for appellant.
Augusto de la Rosa and Angel Arigo for
appellee.
JOHNSON, J.:
This is an appeal from a decision of the
Honorable Manuel V. Moran, judge of the
Court of first Instance of Cavite, denying the
application of Carmen Quinto for the probate of
the alleged will of the deceased Gregorio
Pueblo, her husband.
The application for probate was filed on
October 26, 1928 by Carmen Quinto, executrix
of said will. It was a joint and mutual will of
Gregorio Pueblo and his said wife Carmen
Quinto and contained a provision that the
surviving spouse shall take charge of the
properties therein described and that they shall
pass to the heirs and legatees at the time of
the death of the surviving spouse.
To said application an opposition was filed by
Mateo Pueblo, a brother of the deceased, on
the following grounds: (1) That the attestation
clause of said will does not state the number of
pages of which the will is composed, and (2)
that the attestation clause does not state that
each and every page of the will was signed by
the testators in the presence of the witnesses,
and that the latter signed the same in the
presence of the testators and in the presence
of each other.
Upon the issue thus raised, and after hearing
the evidence, the court rendered a judgment
denying the petition on the ground that the
attestation clause did not state that the
witnesses signed the will in the presence of the
testators, or that both the testators and the
witnesses signed the will and each and every
page thereof in the presence of each other. In
this connection the lower court said:
. . . En la clausula de atestiguamiento
del testamento en cuestion, se hace
constar que los testadores firmaron el
testamento en presencia de los tres
testigos instrumentales y que estos
firmaron el testamento los unos en
presencia de los otros, pero no se hace
constar que dichos testigos firmaron el
testamento enpresencia de los
testadores, ni que estos y aquellos
firmaron today y cada una de las
paginas del testamento los primeros
en presencia de los segundos y vice-
versa.
En su virtud, se deniega la solicitud en
la que se pide la legalizacion del
alegado testamento Exhibit A de
Gregorio Pueblo y Carmen Quinto, y se
declara que Gregorio Pueblo murio
intestado.
From the judgment the petitioner appealed and
now contends:
That the lower court committed an error in
denying the application of the petitioner for the
probate of the will of the deceased Gregorio
Pueblo.
The attestation clause of the will in question
(Exhibit A-1) reads as follows:
Nosotros los que firmamos al final de
este testamento, Florentino Joya,
Aguedo Soriano y Teodoro Bleza
damos fe, de haber visto o presenciado
el acto de firmar en esta escritura o
testamento de los esposes Gregorio
Pueblo y Carmen Quinto; lo firmaron
ellos en nuestra presencia, y que
nosotros los testigos, lo firmamos en
presencia de cade uno de nostros, hoy
3 de noviembre de 1920. Este
testamento esta compuesto de tres
fojas utiles.
As will be noted, the attestation clause
contravenes the express requirements of
section 618 of Act No. 190, as amended by Act
No. 2645, in two ways: First, it fails to state that
each and every page of the will was signed by
the testators and the witnesses; and, second, it
fails to state that the witnesses signed each
and every page of the will in the presence of
the testators.
In the case of Saño vs. Quintana (48 Phil.,
506) this court held that "an attestation clause
which does not recite that the witnesses signed
the will and each and every page thereof on
the left margin in the presence of the testator is
defective, and such defect annuls the will." This
doctrine was restated and reaffirmed in the
case of Gumban vs. Gorecho (50 Phil., 30).
It is vigorously contended on behalf of the
appellant, that the alleged defect of the
attestation clause has been cured by oral
evidence, which was admitted without
opposition on the part of the appellee. This
contention cannot be sustained. The doctrine
of this court with reference to statute of frauds
is not applicable to wills. The statue of frauds
relates to contracts and agreements. The
subject of will and testaments and the
formalities surrounding their execution are
governed by separate and specific provisions
of Act No. 190.
An examination of section 618 of Act No. 190,
prior to, and after its amendment by Act No.
78
2645, shows clearly that the Legislature
intended to exclude evidence aliunde, tending
Page
to establish that the will has been executed
and attested in conformity with the
requirements of the law, where such
compliance does not appear on the face of the,
will itself. Prior to its amendment, section 618
contained the following saving clause: "But the
absence of such form of attestation shall not
render the will invalid if it is proven that the will
was in fact signed and attested as in this
section provided."
The most outstanding feature of the
amendment of said section 618 by Act No.
2645 is the elimination of said saving clause
and the greater emphasis laid on the
formalities as to signatures and the attestation
clause. There can be no doubt, therefore, that
the intention of the Legislature, in eliminating
said clause, was admitted without opposition, it
should not be given effect and thus defeat the
manifest intention of the Legislature in
amending said section 618.
Section 618 of Act No. 190, as amended,
should be given a strict interpretation. In the
case of Uy Coque vs.Navas L. Sioca (43 Phil.,
405) this court, speaking of the construction to
be given to said section, said:
Statutes prescribing the formalities to be
observed in the execution of wills are
very strictly construed. As stated in 40
Cyc., at page 1097, "A will must be
executed in accordance with the
statutory requirements; otherwise it is
entirely void. All these requirements
stand as of equal importance and must
be observed, and courts cannot supply
the defective execution of a will. No
power or discretion is vested in them,
either to superadd other conditions or
dispense with those enumerated in the
statutes." (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 407.)
The judgment appealed from, disallowing the
will of Gregorio Pueblo, is in confirmity with the
facts and the law, and the same should be and
in hereby affirmed, with costs. So ordered.
79
Page
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA,
TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented
herein by his Attorney-in-Fact, ARMSTICIA *
ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS
CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM
CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
REGALADO, J.:
Presented for resolution by this Court in the
present petition for review on certiorari is the
issue of whether or not the attestation clause
contained in the last will and testament of the
late Mateo Caballero complies with the
requirements of Article 805, in relation to
Article 809, of the Civil Code.
The records show that on December 5, 1978,
Mateo Caballero, a widower without any
children and already in the twilight years of his
life, executed a last will and testament at his
residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa.
The said testator was duly assisted by his
lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation
of that last will. 1 It was declared therein,
among other things, that the testator was
leaving by way of legacies and devises his real
and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo,
Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear
to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo
Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch
II of the then Court of First Instance of Cebu
seeking the probate of his last will and
testament. The probate court set the petition
for hearing on August 20, 1979 but the same
and subsequent scheduled hearings were
postponed for one reason to another. On May
29, 1980, the testator passed away before his
petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his
appointment as special administrator of the
testator's estate, the estimated value of which
was P24,000.00, and he was so appointed by
the probate court in its order of March 6,
1981. 4
Thereafter, herein petitioners, claiming to be
nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate
proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the
Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and
the appointment of a special administrator for
his estate. 5
Benoni Cabrera died on February 8, 1982
hence the probate court, now known as Branch
XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on
July 20, 1983, it issued an order for the return
of the records of Special Proceeding No. 3965-
R to the archives since the testate proceeding
for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special
Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the
allowance of the testator's will on the ground
that on the alleged date of its execution, the
testator was already in the poor state of health
such that he could not have possibly executed
the same. Petitioners likewise reiterated the
issue as to the genuineness of the signature of
the testator therein. 7
On the other hand, one of the attesting
witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the
testator executed the will in question in their
presence while he was of sound and disposing
mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good
health and was not unduly influenced in any
way in the execution of his will. Labuca also
testified that he and the other witnesses
attested and signed the will in the presence of
the testator and of each other. The other two
attesting witnesses were not presented in the
probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a
decision declaring the will in question as the
last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of
80
the two witnesses of the
oppositors cannot overcome the
Page
 positive testimonies of Atty.
Filoteo Manigos and Cipriano
Labuca who clearly told the Court
that indeed Mateo Caballero
executed the Last Will and
Testament now marked Exhibit
"C" on December 5, 1978.
Moreover, the fact that it was
Mateo Caballero who initiated the
probate of his Will during his
lifetime when he caused the filing
of the original petition now
marked Exhibit "D" clearly
underscores the fact that this was
indeed his Last Will. At the start,
counsel for the oppositors
manifested that he would want
the signature of Mateo Caballero
in Exhibit "C" examined by a
handwriting expert of the NBI but
it would seem that despite their
avowal and intention for the
examination of this signature of
Mateo Caballero in Exhibit "C",
nothing came out of it because
they abandoned the idea and
instead presented Aurea
Caballero and Helen Caballero
Campo as witnesses for the
oppositors.
All told, it is the finding of this
Court that Exhibit "C" is the Last
Will and Testament of Mateo
Caballero and that it was
executed in accordance with all
the requisites of the law. 9
Undaunted by the said judgment of the probate
court, petitioners elevated the case in the Court
of Appeals in CA-G.R. CV No. 19669. They
asserted therein that the will in question is null
and void for the reason that its attestation
clause is fatally defective since it fails to
specifically state that the instrumental
witnesses to the will witnessed the testator
signing the will in their presence and that they
also signed the will and all the pages thereof in
the presence of the testator and of one
another.
On October 15, 1991, respondent court
promulgated its decision 10 affirming that of the
trial court, and ruling that the attestation clause
in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code,
thus:
The question therefore is whether
the attestation clause in question
may be considered as having
substantialy complied with the
requirements of Art. 805 of the
Civil Code. What appears in the
attestation clause which the
oppositors claim to be defective
is "we do certify that the
testament was read by him and
the attestator, Mateo Caballero,
has published unto us the
foregoing will consisting of
THREE PAGES, including the
acknowledgment, each page
numbered correlatively in letters
of the upper part of each page,
as his Last Will and
Testament, and he has signed
the same and every page thereof,
on the spaces provided for his
signature and on the left hand
margin in the presence of the
said testator and in the presence
of each and all of us (emphasis
supplied).
To our thinking, this is sufficient
compliance and no evidence
need be presented to indicate the
meaning that the said will was
signed by the testator and by
them (the witnesses) in the
presence of all of them and of
one another. Or as the language
of the law would have it that the
testator signed the will "in the
presence of the instrumental
witnesses, and that the latter
witnessed and signed the will and
all the pages thereof in the
presence of the testator and of
one another." If not completely or
ideally perfect in accordance with
the wordings of Art. 805 but (sic)
the phrase as formulated is in
substantial compliance with the
requirement of the law." 11
Petitioners moved for the reconsideration of
the said ruling of respondent court, but the
same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent
court has ruled upon said issue in a manner
not in accord with the law and settled
jurisprudence on the matter and are now
questioning once more, on the same ground as
that raised before respondent court, the validity
of the attestation clause in the last will of Mateo
Caballero.
We find the present petition to be meritorious,
as we shall shortly hereafter, after some
prefatory observations which we feel should be
made in aid of the rationale for our resolution of
the controversy.
1. A will has been defined as a species of
conveyance whereby a person is permitted,
81
with the formalities prescribed by law, to
control to a certain degree the disposition of his
Page
estate after his death. 13 Under the Civil Code,
there are two kinds of wills which a testator
may execute. 14 the first kind is the ordinary or
attested will, the execution of which is
governed by Articles 804 to 809 of the Code.
Article 805 requires that:
Art. 805. Every will, other than a
holographic will, must be
subscribed at the end thereof by
the testator himself or by the
testator's name written by some
other person in his presence, and
by his express direction, and
attested and subscribed by three
or more credible witnesses in the
presence of the testator and of
one another.
The testator or the person
requested by him to write his
name and the instrumental
witnesses of the will, shall also
sign, as aforesaid, each and
every page thereof, except the
last, on the left margin, and all
the pages shall be numbered
correlatively in letters placed on
the upper part of each page.
The attestation should state the
number of pages used upon
which the will is written, and the
fact that the testator signed the
will and every page thereof, or
caused some other person to
write his name, under his express
direction, in the presence of the
instrumental witnesses, and that
the latter witnessed and signed
the will and all the pages thereof
in the presence of the testator
and of one another.
If the attestation clause is in a
language not known to the
witness, it shall be interpreted to
them.
In addition, the ordinary will must be
acknowledged before a notary public by a
testator and the attesting witness.15 hence it is
likewise known as notarial will. Where the
attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if
able to do so. Otherwise, he should designate
two persons who would read the will and
communicate its contents to him in a
practicable manner. On the other hand, if the
testator is blind, the will should be read to him
twice; once, by anyone of the witnesses
thereto, and then again, by the notary public
before whom it is acknowledged. 16
The other kind of will is the holographic will,
which Article 810 defines as one that is entirely
written, dated, and signed by the testator
himself. This kind of will, unlike the ordinary
type, requires no attestation by witnesses. A
common requirement in both kinds of will is
that they should be in writing and must have
been executed in a language or dialect known
to the testator. 17
However, in the case of an ordinary or attested
will, its attestation clause need not be written in
a language or dialect known to the testator
since it does not form part of the testamentary
disposition. Furthermore, the language used in
the attestation clause likewise need not even
be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that,
in such a case, the attestation clause shall be
interpreted to said witnesses.
An attestation clause refers to that part of an
ordinary will whereby the attesting witnesses
certify that the instrument has been executed
before them and to the manner of the
execution the same. 19 It is a separate
memorandum or record of the facts
surrounding the conduct of execution and once
signed by the witnesses, it gives affirmation to
the fact that compliance with the essential
formalities required by law has been
observed. 20 It is made for the purpose of
preserving in a permanent form a record of the
facts that attended the execution of a particular
will, so that in case of failure of the memory of
the attesting witnesses, or other casualty, such
facts may still be proved. 21
Under the third paragraph of Article 805, such
a clause, the complete lack of which would
result in the invalidity of the will, 22 should state
(1) the number of the pages used upon which
the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and
every page thereof in the presence of the
attesting witnesses; and (3) that theattesting
witnesses witnessed the signing by the testator
of the will and all its
pages, and that said witnesses also signed the
will and every page thereof in the presence of
the testator and of one another.
The purpose of the law in requiring the clause
to state the number of pages on which the will
is written is to safeguard against possible
interpolation or omission of one or some of its
pages and to prevent any increase or decrease
in the pages; 23 whereas the subscription of the
signature of the testator and the attesting
witnesses is made for the purpose of
authentication and identification, and thus
indicates that the will is the very same
instrument executed by the testator and
attested to by the witnesses. 24
Further, by attesting and subscribing to the will,
the witnesses thereby declare the due
82
execution of the will as embodied in the
attestation clause. 25 The attestation clause,
Page
therefore, provide strong legal guaranties for
the due execution of a will and to insure the
authenticity thereof. 26 As it appertains only to
the witnesses and not to the testator, it need
be signed only by them. 27 Where it is left
unsigned, it would result in the invalidation of
the will as it would be possible and easy to add
the clause on a subsequent occasion in the
absence of the testator and its witnesses. 28
In its report, the Code Commission commented
on the reasons of the law for requiring the
formalities to be followed in the execution of
wills, in the following manner:
The underlying and fundamental
objectives permeating the
provisions on the law on wills in
this Project consists in the
liberalization of the manner of
their execution with the end in
view of giving the testator more
freedom in expressing his last
wishes, but with sufficient
safeguards and restrictions to
prevent the commission of fraud
and the exercise of undue and
improper pressure and influence
upon the testator.
This objective is in accord with
the modern tendency with
respect to the formalities in the
execution of wills. . . . 29
2. An examination of the last will and testament
of Mateo Caballero shows that it is comprised
of three sheets all of which have been
numbered correlatively, with the left margin of
each page thereof bearing the respective
signatures of the testator and the three
attesting witnesses. The part of the will
containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and
is signed at the foot thereof by the testator. The
attestation clause in question, on the other
hand, is recited in the English language and is
likewise signed at the end thereof by the three
attesting witnesses hereto. 30 Since it is the
proverbial bone of contention, we reproduce it
again for facility of reference:
We, the undersigned attesting
Witnesses, whose Residences
and postal addresses appear on
the Opposite of our respective
names, we do hereby certify that
the Testament was read by him
and the testator, MATEO
CABALLERO; has published unto
us the foregoing Will consisting of
THREE PAGES, including the
Acknowledgment, each page
numbered correlatively in the
letters on the upper part of each
page, as his Last Will and
Testament and he has the same
and every page thereof, on the
spaces provided for his signature
and on the left hand margin, in
the presence of the said testator
and in the presence of each and
all of us.
It will be noted that Article 805 requires that the
witness should both attest and subscribe to the
will in the presence of the testator and of one
another. "Attestation" and "subscription" differ
in meaning. Attestation is the act of senses,
while subscription is the act of the hand. The
former is mental, the latter mechanical, and to
attest a will is to know that it was published as
such, and to certify the facts required to
constitute an actual and legal publication; but
to subscribe a paper published as a will is only
to write on the same paper the names of the
witnesses, for the sole purpose of
31
identification.
In Taboada vs. Rizal, 32 we clarified that
attestation consists in witnessing the testator's
execution of the will in order to see and take
note mentally that those things are done which
the statute requires for the execution of a will
and that the signature of the testator exists as
a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same
paper for the purpose of identification of such
paper as the will which was executed by the
testator. As it involves a mental act, there
would be no means, therefore, of ascertaining
by a physical examination of the will whether
the witnesses had indeed signed in the
presence of the testator and of each other
unless this is substantially expressed in the
attestation.
It is contended by petitioners that the
aforequoted attestation clause, in
contravention of the express requirements of
the third paragraph of Article 805 of the Civil
Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the
testator sign the will and all its pages in their
presence and that they, the witnesses, likewise
signed the will and every page thereof in the
presence of the testator and of each other. We
agree.
What is fairly apparent upon a careful reading
of the attestation clause herein assailed is the
fact that while it recites that the testator indeed
signed the will and all its pages in the presence
of the three attesting witnesses and states as
well the number of pages that were used, the
same does not expressly state therein the
circumstance that said witnesses subscribed
their respective signatures to the will in the
presence of the testator and of each other.
83
The phrase "and he has signed the same and
every page thereof, on the spaces provided for
Page
his signature and on the left hand margin,"
obviously refers to the testator and not the
instrumental witnesses as it is immediately
preceded by the words "as his Last Will and
Testament." On the other hand, although the
words "in the presence of the testator and in
the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted
as referring only to the testator signing in the
presence of the witnesses since said phrase
immediately follows the words "he has signed
the same and every page thereof, on the
spaces provided for his signature and on the
left hand margin." What is then clearly lacking,
in the final logical analysis , is the statement
that the witnesses signed the will and every
page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of
that statement required by law is a fatal defect
or imperfection which must necessarily result in
the disallowance of the will that is here sought
to be admitted to probate. Petitioners are
correct in pointing out that the aforestated
defect in the attestation clause obviously
cannot be characterized as merely involving
the form of the will or the language used
therein which would warrant the application of
the substantial compliance rule, as
contemplated in the pertinent provision thereon
in the Civil Code, to wit:
Art. 809. In the absence of bad
faith, forgery, or fraud, or undue
and improper pressure and
influence, defects and
imperfections in the form of
attestation or in the
language used therein shall not
render the will invalid if it is not
proved that the will was in fact
executed and attested in
substantial compliance with all
the requirements of article 805"
(Emphasis supplied.)
While it may be true that the attestation clause
is indeed subscribed at the end thereof and at
the left margin of each page by the three
attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said
witness affixed their respective signatures in
the presence of the testator and of each other
since, as petitioners correctly observed, the
presence of said signatures only establishes
the fact that it was indeed signed, but it does
not prove that the attesting witnesses did
subscribe to the will in the presence of the
testator and of each other. The execution of a
will is supposed to be one act so that where
the testator and the witnesses sign on various
days or occasions and in various combinations,
the will cannot be stamped with the imprimatur
of effectivity. 33
We believe that the further comment of former
Justice J.B.L. Reyes 34 regarding Article 809,
wherein he urged caution in the application of
the substantial compliance rule therein, is
correct and should be applied in the case
under consideration, as well as to future cases
with similar questions:
. . . The rule must be limited to
disregarding those defects that
can be supplied by an
examination of the will itself:
whether all the pages are
consecutively numbered; whether
the signatures appear in each
and every page; whether the
subscribing witnesses are three
or the will was notarized. All
theses are facts that the will itself
can reveal, and defects or even
omissions concerning them in the
attestation clause can be safely
disregarded. But the total number
of pages, and whether all
persons required to sign did so in
the presence of each other must
substantially appear in the
attestation clause, being the only
check against perjury in the
probate proceedings. (Emphasis
ours.)
3. We stress once more that under Article 809,
the defects and imperfections must only be
with respect to the form of the attestation or the
language employed therein. Such defects or
imperfections would not render a will invalid
should it be proved that the will was really
executed and attested in compliance with
Article 805. In this regard, however, the
manner of proving the due execution and
attestation has been held to be limited to
merely an examination of the will itself without
resorting to evidence aliunde, whether oral or
written.
The foregoing considerations do not apply
where the attestation clause totally omits the
fact that the attesting witnesses signed each
and every page of the will in the presence of
the testator and of each other. 35 In such a
situation, the defect is not only in the form or
language of the attestation clause but the total
absence of a specific element required by
Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the
defect complained of in the present case since
there is no plausible way by which we can read
into the questioned attestation clause
statement, or an implication thereof, that the
84
attesting witness did actually bear witness to
the signing by the testator of the will and all of
Page
its pages and that said instrumental witnesses
also signed the will and every page thereof in
the presence of the testator and of one
another.
Furthermore, the rule on substantial
compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes
that the defects in the attestation clause can be
cured or supplied by the text of the will or a
consideration of matters apparent therefrom
which would provide the data not expressed in
the attestation clause or from which it may
necessarily be gleaned or clearly inferred that
the acts not stated in the omitted textual
requirements were actually complied within the
execution of the will. In other words, defects
must be remedied by intrinsic evidence
supplied by the will itself.
In the case at bar, contrarily, proof of the acts
required to have been performed by the
attesting witnesses can be supplied by only
extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no
basis whatsoever from with such facts may be
plausibly deduced. What private respondent
insists on are the testimonies of his witnesses
alleging that they saw the compliance with
such requirements by the instrumental
witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove
the same and would accordingly be doing by
the indirection what in law he cannot do
directly.
4. Prior to the advent of the Civil Code on
August 30, 1950, there was a divergence of
views as to which manner of interpretation
should be followed in resolving issues
centering on compliance with the legal
formalities required in the execution of wills.
The formal requirements were at that time
embodied primarily in Section 618 of Act No.
190, the Code of Civil Procedure. Said section
was later amended by Act No. 2645, but the
provisions respecting said formalities found in
Act. No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil
Code.
One view advance the liberal or substantial
compliance rule. This was first laid down in the
case of Abangan vs. Abangan, 36 where it was
held that the object of the solemnities
surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid
substitution of wills and testaments and to
guarantee their truth and authenticity.
Therefore, the laws on this subject should be
interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also
emphasized that one must not lose sight of the
fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a
will, hence when an interpretation already
given assures such ends, any other
interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will,
must be disregarded. The subsequent cases
of Avera vs. Garcia, 37 Aldaba vs.
Roque, 38 Unson vs. Abella, 39Pecson vs.
Coronel, 40 Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al. 42 all adhered
to this position.
The other view which advocated the rule that
statutes which prescribe the formalities that
should be observed in the execution of wills
are mandatory in nature and are to be strictly
construed was followed in the subsequent
cases of In the Matter of the Estate of
Saguinsin, 43 In re Will of Andrada, 44 Uy Coque
vs. Sioca, 45 In re Estate of
Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the
Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned
cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses
signed the will and each and every page
thereof on the left margin in the presence of
the testator. The will in question was
disallowed, with these reasons therefor:
In support of their argument on the
assignment of error above-mentioned,
appellants rely on a series of cases of
this court beginning with (I)n the Matter
of the (E)state of Saguinsin ([1920], 41
Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca [1922], 43
Phil., 405), and In re Estate of Neumark
([1923], 46 Phil., 841), and ending
with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation
of a series of cases beginning
with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba
vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de
Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if
possible, conciliate the last two
decisions cited by opposing counsel,
namely, those of Sano vs.
Quintana,supra, and Nayve vs. Mojal
and Aguilar, supra.
In the case of Sano vs. Quintana, supra,
it was decided that an attestation clause
which does not recite that the witnesses
signed the will and each and every page
85
thereof on the left margin in the
presence of the testator is defective,
Page
and such a defect annuls the will. The
case of Uy Coque vs. Sioca, supra, was
cited, but the case of Nayve vs. Mojal
and Aguilar, supra, was not mentioned.
In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was
held that the attestation clause must
estate the fact that the testator and the
witnesses reciprocally saw the signing
of the will, for such an act cannot be
proved by the mere exhibition of the will,
if it is not stated therein. It was also held
that the fact that the testator and the
witnesses signed each and every page
of the will can be proved also by the
mere examination of the signatures
appearing on the document itself, and
the omission to state such evident facts
does not invalidate the will.
It is a habit of courts to reaffirm or
distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet
here, unless aided impossible to
reconcile the Mojal and Quintana
decisions. They are fundamentally at
variance. If we rely on one, we affirm. If
we rely on the other, we reverse.
In resolving this puzzling question of
authority, three outstanding points may
be mentioned. In the first place, the
Mojal, decision was concurred in by only
four members of the court, less than a
majority, with two strong dissenting
opinions; the Quintana decision was
concurred in by seven members of the
court, a clear majority, with one formal
dissent. In the second place, the Mojal
decision was promulgated in December,
1924, while the Quintana decision was
promulgated in December, 1925; the
Quintana decision was thus subsequent
in point of time. And in the third place,
the Quintana decision is believed more
nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is
governed entirely by statute. The law of
the case is here found in section 61 of
the Code of Civil Procedure as
amended by Act No. 2645, and in
section 634 of the same Code, as
unamended. It is in part provided in
section 61, as amended that "No will . .
.shall be valid . . . unless . . .." It is
further provided in the same section that
"The attestation shallstate the number of
sheets or pages used, upon which the
will is written, and the fact that the
testator signed the will and every page
thereof, or caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter witnessed and
signed the will and all pages thereof in
the presence of the testator and of each
other." Codal section 634 provides that
"The will shall be disallowed in either of
the following case: 1. If not executed
and attested as in this Act provided."
The law not alone carefully makes use
of the imperative, but cautiously goes
further and makes use of the negative,
to enforce legislative intention. It is not
within the province of the courts to
disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in
the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal
and Aguilar, supra. (Emphases in the
original text).
But after the Gumban clarificatory
pronouncement, there were decisions of the
Court that once more appeared to revive the
seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs.
Morata, 49Rodriguez vs. Alcala, 50 Enchevarria
vs. Sarmiento, 51 and Testate Estate of
52
Toray went the way of the ruling as restated
in Gumban. But De Gala vs. Gonzales, et
al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs.
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs.
Fabia, 58 Leynez vs. Leynez, 59 Martir vs.
Martir, 60 Alcala vs. De Villa,61 Sabado vs.
Fernandez, 62 Mendoza vs.
Pilapil, 63 and Lopez vs. Liboro, 64 veered away
from the strict interpretation rule and
established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a
conflicting welter of views and of the
undeniable inclination towards a liberal
construction, recommended the codification of
the substantial compliance rule, as it believed
this rule to be in accord with the modern
tendency to give a liberal approach to the
interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with
this explanation of the Code Commission:
The present law provides for only
one form of executing a will, and
that is, in accordance with the
formalities prescribed by Section
618 of the Code of Civil
Procedure as amended by Act
No. 2645. The Supreme Court of
the Philippines had previously
upheld the strict compliance with
86
the legal formalities and had even
said that the provisions of Section
Page
 618 of the Code of Civil
Procedure, as amended
regarding the contents of the
attestation clause were
mandatory, and non-compliance
therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily
restrained the freedom of the
testator in disposing of his
property.
However, in recent years the
Supreme Court changed its
attitude and has become more
liberal in the interpretation of the
formalities in the execution of
wills. This liberal view is
enunciated in the cases
ofRodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No.
47351, April 18, 1941.
In the above mentioned decisions
of our Supreme Court, it has
practically gone back to the
original provisions of Section 618
of the Code of Civil Procedure
before its amendment by Act No.
2645 in the year 1916. To turn
this attitude into a legislative
declaration and to attain the main
objective of the proposed Code in
the liberalization of the manner of
executing wills, article 829 of the
Project is recommended, which
reads:
"Art. 829. In the
absence of bad
faith, forgery, or
fraud, or undue and
improper pressure
and influence,
defects and
imperfections in the
form of attestation
or in the language
used therein shall
not render the will
invalid if it is proved
that the will was in
fact executed and
attested
substantial
compliance with all
the requirements of
article 829."65
The so-called liberal rule, the Court said in Gil
vs. Murciano, 66 "does not offer any puzzle or
difficulty, nor does it open the door to serious
consequences. The later decisions do tell us
when and where to stop; they draw the dividing
line with precision. They do not allow
evidence aliunde to fill a void in any part of the
document or supply missing details that should
appear in the will itself. They only permit a
probe into the will, an exploration into its
confines, to ascertain its meaning or to
determine the existence or absence of the
requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now
stands, is that omissions which can be
supplied by an examination of the will itself,
without the need of resorting to extrinsic
evidence, will not be fatal and,
correspondingly, would not obstruct the
allowance to probate of the will being assailed.
However, those omissions which cannot be
supplied except by evidence aliunde would
result in the invalidation of the attestation
clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby
GRANTED and the impugned decision of
respondent court is hereby REVERSED and
SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of
Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the
Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with
the settlement of the estate of the said
decedent.
SO ORDERED.
in
87
Page
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.
88
Page
FELIX AZUELA, G.R. No. 122880 provisions opens itself to nagging questions as
Petitioner, to its legitimacy.
Present:
The case stems from a petition for probate filed
QUISUMBING, J., on 10 April 1984 with the Regional Trial Court
Chairperson, (RTC) of Manila. The petition filed by petitioner
- versus - CARPIO, Felix Azuela sought to admit to probate the
CARPIO MORALES, and notarial will of Eugenia E. Igsolo, which was
TINGA, JJ. notarized on 10 June 1981. Petitioner is the
COURT OF APPEALS, son of the cousin of the decedent.
GERALDA AIDA CASTILLO Promulgated:
substituted by ERNESTO G. The will, consisting of two (2) pages and
CASTILLO, April 12, 2006 written in the vernacular Pilipino, read in full:
Respondents. HULING HABILIN NI EUGENIA
x------------------------------------------------------------- E. IGSOLO
---------------x
SA NGALAN NG MAYKAPAL,
AMEN:
DECISION
AKO, si EUGENIA E. IGSOLO,
TINGA, J.: nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput
The core of this petition is a highly defective siyam (79) na gulang, nasa
notarial will, purportedly executed by Eugenia hustong pagi-isip, pag-
E. Igsolo (decedent), who died on 16 unawa at memoria ay nag-
December 1982 at the age of 80. In refusing to hahayag na ito na ang aking hulin
give legal recognition to the due execution of g habilin at testamento,
this document, the Court is provided the at binabali wala ko lahat ang nau
opportunity to assert a few important doctrinal nang ginawang habilin o testame
rules in the execution of notarial wills, all self- nto:
evident in view of Articles 805 and 806 of the
Civil Code. Una-
Hinihiling ko na ako ay mailibing
sa Sementerio del Norte, La
Loma sang-
A will whose attestation clause does ayong sa kaugalian at patakaran
not contain the number of pages on which ng simbahang katoliko at ang tag
the will is written is fatally defective. A will a-pag-
whose attestation clause is not signed by ingat (Executor) nghabiling ito ay
the instrumental witnesses is fatally magtatayo ng bantayog upang sil
defective. And perhaps most importantly, a bing ala-ala sa
will which does not contain an akin ng aking pamilya at kaibigan
acknowledgment, but a merejurat, is fatally ;
defective. Any one of these defects is
sufficient to deny probate. A notarial will Pangalawa-
with all three defects is just aching for Aking ipinagkakaloob at isinasalin
judicial rejection. ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela,
There is a distinct and consequential reason na siyang nag-alaga sa akin
the Civil Code provides a comprehensive sa mahabang panahon, yaong m
catalog of imperatives for the proper execution gabahay na nakatirik sa lote num
of a notarial will. Full and faithful compliance ero 28, Block 24
with all the detailed requisites under Article 805 at nakapangalan sa Pechaten Ko
of the Code leave little room for doubt as to the rporasyon, ganoon din ibinibigay
validity in the due execution of the notarial will. ko ang lahat ng karapatan sa bah
Article 806 likewise imposes another safeguard ay na nakatirik sa inoopahankong
to the validity of notarial wills that they be lote, numero 43, Block 24
acknowledged before a notary public by the na pag-
testator and the witnesses. A notarial will aari ng Pechaten Corporation. Ipi
89

executed with indifference to these two codal nagkakaloob kong buong buo an
g lahat ng karapatan sa bahay at
Page
 lupa na nasa 500 San Diego St.,
Lot 42, Block 24, Sampaloc, QUIRINO AGRAVA
Manila kay Felix Azuela address: 1228-Int. 3, Kahilum
at ang pagkakaloob kong ito ay w Pandacan, Manila Res. Cert. No. A-
alang pasubalit at kondiciones; 458365
Issued at Manila on Jan. 21,
Pangatlo- 1981
Na ninunumbrahan ko si VART
PAGUE LAMBERTO C. LEAO
na siyang nagpapatupad ng hulin address: Avenue 2, Blcok 7,
g habiling ito at kagustuhan ko rin Lot 61, San Gabriel,
na hindi na kailanman siyang ma G.MA., Cavite Res.
g-lagak ng piyansiya. Cert. No. A-768277 issued
at Carmona, Cavite
on Feb. 7, 1981

JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No.
A574829
Aking nilagdaan ang Huling Habili Issued at Manila on March 2,
n na ito dito sa Maynila ika 10 ng 1981.
Hunyo, 1981.

(Sgd.)
EUGENIA E. IGSOLO Nilagdaan ko at ninotario ko ngay
(Tagapagmana) ong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.
PATUNAY NG MGA SAKSI

Ang kasulatang ito, (Sgd.)

na binubuo ng ____ dahon pati a
ng huling dahong ito,
na ipinahayag sa amin ni Eugeni
a E.
Igsolo, tagapagmana na siya niya
ng Huling Habilin, ngayon ika-
10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapa
gmana sa ilalim ng kasulatang na
banggit at
sa kaliwang panig ng lahat at ba
wat dahon,
sa harap ng lahat at bawat sa am
in,
atkami namang mga saksi ay lum
agda sa harap ng nasabing tagap
agmana at
sa harap ng lahat at bawat isa sa
amin,
sa ilalim ng nasabing kasulatan a
t allowed, and that letters testamentary be
sa kaliwang panig ng lahat atbaw
at dahon ng kasulatan ito.
PETRONIO Y. BAUTISTA
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-
8[1]
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
issued to the designated executor, Vart
Prague.

EUGENIA E. IGSOLO The petition was opposed by Geralda Aida

address: 500 San Diego St. Castillo (Geralda Castillo), who represented
Sampaloc, Manila Res. Cert. No. herself as the attorney-in-fact of the 12
90

A-7717-37 legitimate heirs of the decedent.[2]Geralda

Issued at Manila on March 10, 1981. Castillo claimed that the will is a forgery, and
Page
that the true purpose of its emergence was so the following statement is made
it could be utilized as a defense in several under the sub-title, Patunay Ng
court cases filed by oppositor against Mga Saksi:
petitioner, particularly for forcible entry and
usurpation of real property, all centering on Ang kasulata
petitioners right to occupy the properties of the ng ito,
decedent.[3]It also asserted that contrary to the na binubuo ng ____
representations of petitioner, the decedent was _ dahon pati ang hu
actually survived by 12 legitimate heirs, namely ling dahong ito,
her grandchildren, who were then residing na ipinahayag sa a
abroad. Per records, it was subsequently min ni Eugenia N.
alleged that decedent was the widow of Igsolo, tagapagman
Bonifacio Igsolo, who died in 1965,[4] and the a na siya niyang Hu
mother of a legitimate child, Asuncion E. lingHabilin, ngayon
Igsolo, who predeceased her mother by three g ika-
(3) months.[5] 10 ng Hunyo 1981,
ay nilagdaan ng nas
Oppositor Geralda Castillo also argued abing tagapagmana
that the will was not executed and attested to sa ilalim ng kasulat
in accordance with law. She pointed out that ang nabanggit at
decedents signature did not appear on the sa kaliwang panig n
second page of the will, and the will was not g lahat at bawat da
properly acknowledged. These twin arguments hon,
are among the central matters to this petition. saharap ng lahat at
bawat sa amin,
After due trial, the RTC admitted the will to at kami namang mg
probate, in an Order dated 10 August a saksi ay lumagda
1992.[6] The RTC favorably took into account sa harap ng nasabi
the testimony of the three (3) witnesses to the ng tagapagmana at
will, Quirino Agrava, Lamberto Leano, and sa harap ng lahat at
Juanito Estrada. The RTC also called to fore bawat isa sa amin,
the modern tendency in respect to the sa ilalim ngnasabin
formalities in the execution of a will x x x with g kasulatan at
the end in view of giving the testator more sa kaliwang panig n
freedom in expressing his last wishes;[7] and g lahat at bawat da
from this perspective, rebutted oppositors hon ng kasulatan ito
arguments that the will was not properly .
executed and attested to in accordance with
law. The aforequoted
After a careful examination declaration comprises the
of the will and consideration of attestation clause and the
the testimonies of the subscribing acknowledgement and is
and attesting witnesses, and considered by this Court as a
having in mind the modern substantial compliance with the
tendency in respectto the requirements of the law.
formalities in the execution of a
will, i.e., the liberalization of the On the oppositors
interpretation of the law on the contention that the attestation
formal requirements of a will with clause was not signed by the
the end in view of giving the subscribing witnesses at the
testator more freedom in bottom thereof, this Court is of
expressing his last wishes, this the view that the signing by the
Court is persuaded to rule that subscribing witnesses on the left
the will in question is authentic margin of the second page of the
and had been executed by the will containing the attestation
testatrix in accordance with law. clause and acknowledgment,
instead of at the bottom thereof,
On the issue of lack of substantially satisfies the purpose
acknowledgement, this Court has of identification and attestation of
91

noted that at the end of the will the will.

after the signature of the testatrix,
Page
 With regard to the
oppositors 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 oppositors
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
92
only one defect, the failure of the attestation
clause to state the number of pages of the will.
Page
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. Sioca[13] and In
re: Will of Andrada.[14] InUy 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]
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:
xxx

The case of In re Will of

Andrada concerned a will the attestation clause The law referred to is article 618
of which failed to state the number of sheets or of the Code of Civil
pages used. This consideration alone was Procedure, as
sufficient for the Court to declare unanim[ity] amended by Act
upon the point that the defect pointed out in the No. 2645, which
attesting clause is fatal.[17] It was further requires that the
observed that it cannot be denied that the x x x attestation clause
requirement affords additional security against shall state the
the danger that the will may be tampered with; number of pages or
and as the Legislature has seen fit to prescribe sheets upon which
this requirement, it must be considered the will is written,
material.[18] which requirement
has been held to be
Against these cited cases, petitioner mandatory as an
cites Singson v. Florentino[19] and Taboada v. effective safeguard
Hon. Rosal,[20] wherein the Court allowed against the
probate to the wills concerned therein despite possibility of
the fact that the attestation clause did not state interpolation or
93

the number of pages of the will. Yet the omission of some of

appellate court itself considered the import of the pages of the will
Page
to the prejudice of the testator from
the heirs to whom being defeated by
the property is purely technical
intended to be considerations. (pa
bequeathed (In re ge 165-165,
Will of Andrada, 42 supra) (Underscorin
Phil. 180; Uy Coque g supplied)
vs. Navas L. Sioca,
43 Phil., 405; In Apolonio Tabaoda versus Hon.
Gumban vs. Avelino Rosal, et al. supra, the
Gorcho, 50 Phil. 30; notarial acknowledgement in the
Quinto vs. Morata, Will states the number of pages
54 Phil. used in the:
481; Echevarria vs.
Sarmiento, 66 Phil. xxx
611). The ratio deci
dendi of these
cases seems to be
that the attestation We have examined the will in
clause must contain question and
a statement of the noticed that the
number of sheets or attestation clause
pages composing failed to state the
the will and that if number of pages
this is missing or is used in writing the
omitted, it will have will. This would
the effect of have been a fatal
invalidating the will defect were it not
if the deficiency for the fact that, in
cannot be supplied, this case, it is
not by discernible from the
evidence aliunde, entire will that it is
but by a really and actually
consideration or composed of only
examination of the two pages duly
will itself. But here signed by the
the situation is testatrix and her
different. While the instrumental
attestation clause witnesses. As
does not state the earlier stated, the
number of sheets or first page which
pages upon which contains the entirety
the will is of the testamentary
written, however, dispositions is
the last part of the signed by the
body of the will testatrix at the end
contains a or at the bottom
statement that it is while the
composed of eight instrumental
pages, which witnesses signed at
circumstance in our the left margin. The
opinion takes this other page which is
case out of the rigid marked
rule of construction as Pagina dos
and places it within comprises the
the realm of similar attestation clause
cases where a and the
broad and more acknowledgment. T
liberal view has he acknowledgment
94

been adopted to itself states that this

prevent the will of Last Will and
Page
 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 formalrequirement 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 Appeals[26] 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.
95
Caneda suggested: [I]t may thus be
stated that the rule, as it now stands, is that
Page
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
evidence aliunde would result in
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
anothers 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 testators
incontestable desires, and not for the
indulgent admission of wills to probate.
by
the 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. Cagro[36] 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) Justices[38] 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.
96
Page
 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 clause itself, but not the left-
hand margin of the page containing such
clause. Without diminishing 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 witnesses themselves. It is the
witnesses, and not the testator, who are
required under Article 805 to state the number
of pages used upon which the will is written;
the fact that the testator had signed the will and
every page thereof; and that they witnessed
and signed the will and all the pages thereof in
the presence of the testator and of one
another. The only proof in the will that the
witnesses have stated these elemental facts
would be their signatures on the attestation
clause.
Thus, the subject will cannot be
considered to have been validly attested to by
the instrumental witnesses, as they failed to
sign the attestation clause.
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 highlighted by
the fact that it had been segregated from the
other requirements under Article 805 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 of equivalent import.
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 Lungsodng 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
97
the decedent and the instrumental witnesses.
Page
 Yet even if we consider what was mandatory.[45] Taken in isolation, these
affixed by the notary public as a jurat, the will omissions, by themselves, may not be
would nonetheless remain invalid, as the sufficient to deny probate to a will. Yet even as
express requirement of Article 806 is that the these omissions are not decisive to the
will be acknowledged, and not merely adjudication of this case, they need not be
subscribed and sworn to. The will does not dwelt on, though indicative as they may be of a
present any textual proof, much less one general lack of due regard for the requirements
under oath, that the decedent and the under Article 805 by whoever executed the will.
instrumental witnesses executed or signed the
will as their own free act or deed. The All told, the string of mortal defects
acknowledgment made in a will provides for which the will in question suffers from makes
another all-important legal safeguard against the probate denial inexorable.
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 WHEREFORE, the petition is DENIED.
instrumental witnesses to declare before an Costs against petitioner.
officer of the law that they had executed and
subscribed to the will as their own free act or SO ORDERED.
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.

There are two other requirements under

Article 805 which were not fully satisfied by the
will in question. We need not
discuss them at length, as they are nolonger
material to the

disposition of this case. The provision requires

that the testator and the instrumental witnesses
sign each and every page of the will on the left
margin, except the last; and that all the pages
shall be numbered correlatively in letters
placed on the upper part of each page. In this
case, the decedent, unlike the witnesses, failed
to sign both pages of the will on the left margin,
her only signature appearing at the so-called
logical end[44] of the will on its first page. Also,
the will itself is not numbered correlatively in
letters on each page, but instead numbered
with Arabic numerals. There is a line of thought
98

that has disabused the notion that these two

requirements be construed as
Page
G.R. No. 189984 November 12, 2012
IN THE MATTER OF THE PETITION FOR
THE PROBATE OF THE LAST WILL AND
TESTAMENT OF ENRIQUE S. LOPEZ
RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE
LEON and VICTORIA L.
TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails
the March 30, 2009 Decision1 and October 22,
2009 Resolution2 of the Court of Appeals (CA)
in CA-G.R. CV No. 87064 which affirmed the
August 26, 2005 Decision3 of the Regional Trial
Court of Manila, Branch 42 (RTC), in SP. Proc.
No. 99-95225 disallowing the probate of the
Last Will and Testament of Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique)
died leaving his wife, Wendy B. Lopez, and
their four legitimate children, namely, petitioner
Richard B. Lopez (Richard) and the
respondents Diana Jeanne Lopez (Diana),
Marybeth de Leon (Marybeth) and Victoria L.
Tuazon (Victoria) as compulsory heirs. Before
Enrique’s death, he executed a Last Will and
Testament4 on August 10, 1996 and
constituted Richard as his executor and
administrator.
On September 27, 1999, Richard filed a
petition for the probate of his father's Last Will
and Testament before the RTC of Manila with
prayer for the issuance of letters testamentary
in his favor. Marybeth opposed the petition
contending that the purported last will and
testament was not executed and attested as
required by law, and that it was procured by
undue and improper pressure and influence on
the part of Richard. The said opposition was
also adopted by Victoria.
After submitting proofs of compliance with
jurisdictional requirements, Richard presented
the attesting witnesses, namely: Reynaldo
Maneja; Romulo Monteiro; Ana Maria Lourdes
Manalo (Manalo); and the notary public who
notarized the will, Atty. Perfecto Nolasco (Atty.
Nolasco). The instrumental witnesses testified
that after the late Enrique read and signed the
will on each and every page, they also read
and signed the same in the latter's presence
and of one another. Photographs of the
incident were taken and presented during trial.
Manalo further testified that she was the one
who prepared the drafts and revisions from
Enrique before the final copy of the will was
made.
Likewise, Atty. Nolasco claimed that Enrique
had been his client for more than 20 years.
Prior to August 10, 1996, the latter consulted
him in the preparation of the subject will and
furnished him the list of his properties for
distribution among his children. He prepared
the will in accordance with Enrique's instruction
and that before the latter and the attesting
witnesses signed it in the presence of one
another, he translated the will which was
written in English to Filipino and added that
Enrique was in good health and of sound mind
at that time.
On the other hand, the oppositors presented its
lone witness, Gregorio B. Paraon (Paraon),
Officer-in-Charge of the Notarial Section, Office
of the Clerk of Court, RTC, Manila. His
testimony centered mainly on their findings that
Atty. Nolasco was not a notary public for the
City of Manila in 1996, which on cross
examination was clarified after Paraon
discovered that Atty. Nolasco was
commissioned as such for the years 1994 to
1997.
Ruling of the RTC
In the Decision dated August 26, 2005,5 the
RTC disallowed the probate of the will for
failure to comply with Article 805 of the Civil
Code which requires a statement in the
attestation clause of the number of pages used
upon which the will is written. It held that while
Article 809 of the same Code requires mere
substantial compliance of the form laid down in
Article 805 thereof, the rule only applies if the
number of pages is reflected somewhere else
in the will with no evidence aliunde or extrinsic
evidence required. While the acknowledgment
portion stated that the will consists of 7 pages
including the page on which the ratification and
acknowledgment are written, the RTC
observed that it has 8 pages including the
acknowledgment portion. As such, it disallowed
the will for not having been executed and
attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal
which the RTC granted in the Order dated
October 26, 2005.6
Ruling of the Court of Appeals
On March 30, 2009,7 the CA issued the
assailed decision dismissing the appeal. It held
that the RTC erroneously granted Richard's
appeal as the Rules of Court is explicit that
appeals in special proceedings, as in this case,
must be made through a record on appeal.
Nevertheless, even on the merits, the CA
found no valid reason to deviate from the
findings of the RTC that the failure to state the
number of pages of the will in the attestation
clause was fatal. It noted that while Article 809
of the Civil Code sanctions mere substantial
compliance with the formal requirements set
forth in Article 805 thereof, there was a total
99
omission of such fact in the attestation clause.
Moreover, while the acknowledgment of the will
Page
made mention of "7 pages including the page
on which the ratification and acknowledgment
are written," the will had actually 8 pages
including the acknowledgment portion thus,
necessitating the presentation of evidence
aliunde to explain the discrepancy. Richard's
motion for reconsideration from the decision
was likewise denied in the second assailed
Resolution8 dated October 22, 2009.
Hence, the instant petition assailing the
propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of
Wills, particularly, Articles 805 and 809 of the
Civil Code provide:
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.1âwphi1(underscoring supplied)
ART. 809. In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and
influence, defects and imperfections in the form
of attestation or in the language used therein
shall not render the will invalid if it is proved
that the will was in fact executed and attested
in substantial compliance with all the
requirements of Article 805.
The law is clear that the attestation must state
the number of pages used upon which the will
is written. The purpose of the law is to
safeguard against possible interpolation or
omission of one or some of its pages and
prevent any increase or decrease in the
pages.9
While Article 809 allows substantial compliance
for defects in the form of the attestation clause,
Richard likewise failed in this respect. The
statement in the Acknowledgment portion of
the subject last will and testament that it
"consists of 7 pages including the page on
which the ratification and acknowledgment are
written"10 cannot be deemed substantial
compliance. The will actually consists of 8
pages including its acknowledgment which
discrepancy cannot be explained by mere
examination of the will itself but through the
presentation of evidence aliund.11 On this
score is the comment of Justice J.B.L. Reyes
regarding the application of Article 809, to wit:
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.12(Emphasis
supplied)
Hence, the CA properly sustained the
disallowance of the will. Moreover, it correctly
ruled that Richard pursued the wrong mode of
appeal as Section 2(a), Rule 41 of the Rules of
Court explicitly provides that in special
proceedings, as in this case, the appeal shall
be made by record on appeal.
WHEREFORE, premises considered, the
petition is DENIED.
SO ORDERED.
100
Page
 MANUEL A. ECHAVEZ,
Petitioner,
- versus -
DOZEN CONSTRUCTION
DEVELOPMENT CORPORATION and SERENO, JJ.
THE REGISTER OF DEEDS OF CEBU Promulgated:
CITY,
Respondents.
x----------------------------------------------------------------------------------------x
RESOLUTION
BRION, J.:
Vicente Echavez (Vicente) was the
absolute owner of several lots in Cebu City,
which includes Lot No. 1956-A and Lot No.
1959 (subject lots). On September 7, 1985,
Vicente donated the subject lots to petitioner
Manuel Echavez (Manuel) through a Deed of
Donation Mortis Causa.[1] Manuel accepted the
donation.
In March 1986, Vicente executed a
Contract to Sell over the same lots in favor of
Dozen Construction and Development
Corporation (Dozen Corporation). In October
1986, they executed two Deeds of Absolute
Sale over the same properties covered by the
previous Contract to Sell.
On November 6, 1986, Vicente
died. Emiliano Cabanig, Vicentes nephew, filed
a petition for the settlement of Vicentes
intestate estate. On the other hand, Manuel
filed apetition to approve Vicentes
donation mortis causa in his favor and
an action to annul the contracts of
sale Vicente executed in favor of Dozen
Corporation. These cases were jointly heard.
The Regional Trial Court (RTC)
dismissed Manuels petition to approve the
donation and his action for annulment of
the contracts of sale.[2] The RTC found that
the execution of a Contract to Sell in favor of
Dozen Corporation, after Vicente had donated
the lots to Manuel, was an equivocal act that
revoked the donation. The Court of Appeals
(CA) affirmed the RTCs decision.[3] The CA
held that since the donation in favor of Manuel
was a donation mortis causa, compliance with
the formalities for the validity of wills should
have been observed. The CA found that the
deed of donation did not contain an
attestation clause and was therefore void.
G.R. No. 192916
The Petition for Review on Certiorari
Present:
Manuel claims that the CA should have applied
CARPIO MORALES, the rule J., onChairperson,
substantial compliance in the
BRION, construction of a will to Vicentes
BERSAMIN,donation mortis causa. He insists that the strict
AND VILLARAMA, construction
JR., and of a will was not warranted in the
absence of any indication of bad faith, fraud, or
substitution in the execution of the Deed of
October 11,Donation
2010 Mortis Causa. He argues that the CA
ignored the Acknowledgment portion of the
deed of donation, which contains the import
and purpose of the attestation clause required
in the execution of wills. The Acknowledgment
reads:
BEFORE ME, Notary Public, this
7th day of September 1985 at
Talisay, Cebu, personally
appeared VICENTE S. Echavez
with Res. Cert. No. 16866094
issued on April 10, 1985 at [sic]
Talisay, Cebu known to me to be
the same person who executed
the foregoing instrument of Deed
of Donartion Mortis Causa before
the Notary Public and in the
presence of the foregoing three
(3) witnesses who signed this
instrument before and in the
presence of each other and of the
Notary Public and all of them
acknowledge to me that the same
is their voluntary act and deed.
[Emphasis in the original.]
THE COURTS RULING
The CA correctly declared that a
donation mortis causa must comply with the
formalities prescribed by law for the validity of
wills,[4] otherwise, the donation is void and
would produce no effect. [5] Articles 805 and
806 of the Civil Code should have been
applied.
As the CA correctly found, the purported
attestation clause embodied in the
Acknowledgment portion does not contain the
number of pages on which the deed was
written.The exception to this rule in Singson v.
Florentino[6] and Taboada v. Hon.
Rosal,[7] cannot be applied to the present case,
as the facts of this case are not similar with
those ofSingson and Taboada. In those cases,
the Court found that although the attestation
clause failed to state the number of pages
upon which the will was written, the number of
101
pages was stated in one portion of the
will. This is not the factual situation in the
present case.
Page
 Even granting that the Acknowledgment
embodies what the attestation clause requires,
we are not prepared to hold that an attestation
clause and an acknowledgment can be merged
in one statement.
That the requirements of attestation and
acknowledgment are embodied in two separate
provisions of the Civil Code (Articles 805 and
806, respectively) indicates that the law
contemplates two distinct acts that serve
different purposes. An acknowledgment is
made by one executing a deed, declaring
before a competent officer or court that the
deed or act is his own. On the other hand, the
attestation of a will refers to the act of the
instrumental witnesses themselves who certify
to the execution of the instrument before them
and to the manner of its execution.[8]

Although the witnesses in the present

case acknowledged the execution of the Deed
of Donation Mortis Causa before the notary
public, this is not the avowal the law requires
from the instrumental witnesses to the
execution of a decedents will. An attestation
must state all the details the third paragraph of
Article 805 requires. In the absence of the
required avowal by the witnesses themselves,
no attestation clause can be deemed
embodied in the Acknowledgement of the
Deed of Donation Mortis Causa.

Finding no reversible error committed by

the CA, the Court hereby DENIES Manuels
petition for review on certiorari.

SO ORDERED.

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