A.M. No. 2026-CFI December 19, 1981 NENITA DE VERA SUROZA vs. JUDGE REYNALDO P.
She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor
HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO,
Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably a forged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the
Court of Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a
boy named Agapito who used the surname Suroza and who considered them as his parents as shown
in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo
of Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child
named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito.
of Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years
old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to
the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig,
Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her
death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square
meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and
the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's
husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of
Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before
the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation
and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts
of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a
deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and
to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's
son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter
(pp. 52-68, Record of testate case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that
motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly
executed and attested, that it was procured by means of undue influence employed by Marina and
Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of
Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who
swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus
motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an
opposition to the probate of the will and a counter-petition for letters of administration. In that
opposition, Nenita assailed the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito
was not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of
letters of administration because of the non-appearance of her counsel at the hearing. She moved for
the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul"
the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of
February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered
the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in which the win was written.
(In the decree of probate Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son
named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the
will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and
that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since
Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she
(Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no rights
thereto and, should she persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the
testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that
the sum of ten thousand pesos was needed in order that Nenita could get a favorable decision.
Evangeline also denied that she has any knowledge of Nenita's pension from the Federal
Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison
of the Court of Appeals for investigation, report and recommendation. He submitted a report dated
October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore
that the testatrix and the three attesting witnesses did not appear before him and that he notarized
the will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the
notary the testatrix and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-
G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void win should have inherited the
decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent,
not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence
showing that the judicial acts complained of were corrupt or inspired by an intention to violate the
law, or were in persistent disregard of well-known legal rules" (In relmpeachment of Horrilleno, 43
Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence
and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood and
known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean
that the will was written in a language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code that every will must be executed
in a language or dialect known to the testator. Thus, a will written in English, which was not known to
the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the anomaly as to
the language of the will but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to
his salary for one month is imposed on respondent judge (his compulsory retirement falls on
December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City.
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI
November 21, 1980, 101 SCRA 225).
SO ORDERED.
G.R. No. L-13431 November 12, 1919 In re will of Ana Abangan. GERTRUDIS
ABANGAN, executrix-appellee, vs. ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants. M. Jesus Cuenco for appellee.
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 add nothing.
We cannot assume that the statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures written on the bottom
do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on
the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further signed on their margins by the testator and
the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordal
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the testarix knew the
dialect in which the will is written. But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against
the appellants. So ordered.
Arellano, C.J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
G.R. No. L-19079 January 15, 1923 PRIMITIVO GONZALEZ Y LAUREL, applicant-appellee, vs. JOVITA then mentally capacitated and free. Such is the fact established by the evidence, which we have
LAUREL Y TAPIA, opponent-appellant. carefully examined. law library

Juan S. Rustia for appellant. The appellee in his own behalf.
ROMUALDEZ, J.:
By an order dated December 16, 1921, the Court of First Instance of Batangas allowed the document,
Exhibit A, to probate as the last will and testament of the deceased Maria Tapia, thus granting the
petition of Primitivo L. Gonzalez and overruling the opposition presented by Jovita Laurel.
Jovita Laurel now appeals to this court from that ruling of the court below, alleging that court erred:
1. In Holding that Exhibit A, the supposed will of the deceased Maria Tapia y Castillo, was executed
with the solemnities prescribed by the law, notwithstanding that there was no proof of the dialect
known by the said deceased and of the fact that it was the same in which said Exhibit A was written.
law library
2. In not holding that the signatures of Maria Tapia appearing in said Exhibit A had been obtained
through deceipt, surprise, fraud, and in an illegal and improper manner. virtual law library
3. In not finding that said Exhibit A was obtained through unlawful pressure, influence and
machinations of the applicant, Primitivo L. Gonzalez, one of the legatees, in connivance with Attorney
Modesto Castillo. law library
4. In not finding that the deceased Maria Tapia was physically and mentally incapacitated at the time
she is said to have executed Exhibit A. law library
In connection with the evidence, our attention was called to an irreconcilable conflict between the
transcript of an answer of the witness Primitivo L. Gonzalez, presented by the appellant as "Annex 1"
to his motion filed in this court (fol. 16 of the Rollo), and the official transcript, in that while said
answer is " Yes, sir," according to the transcript of the appellant, it is " Certainly, that is not true,"
according to the official transcript of the stenographic notes attached to the record. But it is to be
noted that at the continuation of the hearing held on a subsequent date, in which said witness
Primitivo L. Gonzalez was examined on this contradiction, he said in the course of the rebuttal
evidence of the applicant: " No, sir. I did not answer in that way. I did not take her hand to make her
sign. I did not by any means answer that question to that effect. I very well remember that fact,
because it affects much the probate of the will." (Fols. 56 and 57 of transcript and documentary
evidence.) law library
It appearing from the record that the document Exhibit A is the will of the deceased Maria Tapia,
executed with all the formalities and solemnities required by the law, the trial court did not commit
any error in admitting it to probate. virtual law library
For the purposes of this decision, we deem it unnecessary to pass upon the question raised by the
appellee as to whether or not this appeal was perfected within the time fixed by the law. law library
The order appealed from is affirmed, with the costs against the appellant. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.

5. In declaring said Exhibit A valid and authentic and allowing it to probate as the will and testament
of the deceased Maria Tapia y Castillo.

Concerning the first error assigned, it appears that the deceased Maria Tapia was a resident of the
Province of Batangas, a Tagalog region, where said deceased had real properties for several years. It
also appears that she requested Modesto Castillo to draw her will in Tagalog. From the record taken
as a whole, a presumption arises that said Maria Tapia knew the Tagalog dialect, which presumption
is now conclusive for not having been overthrown nor rebutted. law library

The three following errors have reference to the question whether or not the testatrix acted
voluntarily and with full knowledge in executing and signing the will. The preponderance of evidence
in this respect is that said document was executed and signed by Maria Tapia voluntarily and with full
knowledge, without fraud, deceit, surprise, or undue influence or machinations of anybody, she being
G.R. No. 42258 September 5, 1936 In re Will of the deceased Leoncia Tolentino. VICTORIO
PAYAD, petitioner-appellant, vs. AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January
29, 1935, praying for the reconsideration of the decision of the court and that of the same date,
praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied upon in her
pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces
of the will where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a physical or
mental condition to make it.
We have again reviewed the evidence to determine once more whether the errors assigned by the
oppositor in her brief have not been duly considered, whether some fact or detail which might have
led us to another conclusion has been overlooked, or whether the conclusions arrived at in our
decision are not supported by the evidence. We have found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good health until September 1, 1933. She had a
slight cold on said date for which reason she was visited by her physician, Dr. Florencio Manuel. Said
physician again visited her three or four days later and found her still suffering from said illness but
there was no indication that she had but a few days to live. She ate comparatively well and conserved
her mind and memory at least long after noon of September 7, 1933. She took her last nourishment
of milk in the morning of the following day, September 8, 1933, and death did not come to her until
11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on
September 7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said
attorney her desire to make a will and bequeath her property to the petitioner Victorio Payad in
compensation according to her, for his diligent and faithful services rendered to her. Victorio Payad
had grown up under the care of the testatrix who had been in her home from childhood. The will was
written by Attorney Almario in his own handwriting, and was written in Spanish because he had been
instructed to do so by the testatrix. It was later read to her in the presence of Pedro L. Cruz, Jose
Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The testatrix approved all the
contents of the document and requested Attorney Almario to write her name where she had to sign
by means of her thumbmark in view of the fact that her fingers no longer had the necessary strength
to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney
Almario proceeded to write the name of the testatrix on the three pages composing the will and the
testatrix placed her thumbmark on said writing with the help of said attorney, said help consisting in
guiding her thumb in order to place the mark between her name and surname, after she herself had
moistened the tip of her thumb with which she made such mark, on the ink pad which was brought to
her for said purpose. Said attorney later signed the three pages of the will in the presence of the
testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith
signed it successively and exactly under the same circumstances above stated.
In support of her claim that the testatrix did not place her thumbmark on the will on September 7,
1983, and that she never made said will because she was no longer physically or mentally in a
condition do so, the oppositor cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon
and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the
morning of September 7, 1933, in the house of the deceased where they were then living, and that
the first time that they saw him there was at about 12 o'clock noon on September 8th of said year,
when Leoncia Tolentino was already dead, Gliceria Quisonia stating that on that occasion Almario
arrived there accompanied only by woman named Pacing. They did not state that Almario was
accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses of
the will. Said two witnesses, however, could not but admit that their room was situated at the other
end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and that
their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria
Quisonia saw the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez
stayed in his room, without leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria
Quisonia further stated that in the morning of September 7th, she prepared the noonday meal in the
kitchen which was situated under the house. Under such circumstances it is not strange that the two
did not see the testatrix when, according to the evidence for the petitioner, she made her will and
signed it by means of her thumbmark. In order to be able to see her and also Almario and the
instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room
where the deceased was, or at least the adjoining room where the will was prepared by Attorney
Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak
that she could not move and that she could hardly be understood because she could no longer
enunciate, making it understood thereby, that in such condition it was absolutely impossible for her
to make any will. The attorney for the oppositor insists likewise and more so because, according to
him and his witness Paz de Leon, two days before the death of the testatrix, or on September 6, 1933,
she could not even open her eyes or make herself understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the
petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will
because, to corroborate them, we have of record the testimony of the physician of the deceased and
the accountant Ventura Loreto who are two disinterested witnesses, inasmuch as the outcome of
these proceedings does not affect them in the least. The two testified that two, three or four days
before the death of the testatrix, they visited her in her home, the former professionally, and the
latter as an acquaintance, and they then found her not so ill as to be unable to move or hold a
conversation. They stated that she spoke to them intelligently; that she answered all the questions
which they had put to her, and that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for
reconsideration is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the
deceased left a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R.
Yangco, with instructions not to open it until after her death; (2) that there are witnesses competent
to testify on the letter in question, in addition to other evidence discovered later, which could not be
presented at the trial; (3) that in the letter left by the deceased, she transfers all her property to
Teodoro R. Yangco stating therein that, upon her death, all the property in question should become
Yangco's. From this alleged fact, the oppositor infers that the deceased never had and could not have
had the intention to make the will in question, and (4) that said oppositor knew of the existence of
said letter only after her former attorney, Alejandro Panis, had been informed thereof in May, 1935,
by one of Teodoro R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another
supplementary motion alleging that she had discovered some additional new evidence consisting in
the affidavit of Attorney Gabino Fernando Viola wherein the latter affirms that Victorio Payad had
called him on September 5, 1933, to prepare the will of the deceased but he did not do so because
after seeing her he had been convinced that she could not make a will because she had lost her
speech and her eyes were already closed.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts
alleged by the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly
discovered evidence, and are not admissible to warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed by Attorney Jose Cortes in his affidavit long before
this case was decided by this court. It is stated in said affidavit that in May, 1935, Attorney Jose
Cortes revealed to the attorney for oppositor the fact that the deceased had left a letter whereby she
transferred all her property to Teodoro R. Yangco, and the judgment was rendered only on January
15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly discovered evidence
inasmuch as the judgment of the lower court was favorable to her. She, however, overlooks the fact
that she also appealed from the decision of the lower court and it was her duty, under the
circumstances, to inform this court of the discovery of said allegedly newly discovered evidence and
to take advantage of the effects thereof because, by so doing, she could better support her claim that
the testatrix made no will, much less the will in question. Said evidence, is not new and is not of the
nature of that which gives rise to a new trial because, under the law, in order that evidence may be
considered newly discovered evidence and may serve as a ground for a new trial, it is necessary (a)
that it could not have been discovered in time, even by the exercise of due diligence; (b) that it be
material, and (c) that it also be of such a character as probably to change the result if admitted
(section 497, Act No. 190; Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering
it newly discovered evidence, it will be sufficient to support the decision of the lower court and
modify that of this court. It is simply hearsay or, at most, corroborative evidence. The letter of the
deceased Leoncia Tolentino to Teodoro R. Yangco would, in the eyes of the law, be considered
important or material evidence but this court has not the letter in question before it, and no attempt
was ever made to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not
more competent than that of Attorney Jose Cortes because, granting that when he was called by
Victorio Payad to help the deceased Leoncia Tolentino to make her will and he went to her house on
September 5, 1933, the deceased was almost unconscious, was unintelligible and could not speak, it
does not necessarily mean that on the day she made her will, September 7, 1933, she had not
recovered consciousness and all her mental faculties to capacitate her to dispose of all her property.
What Attorney Gabino Fernando Viola may testify pursuant to his affidavit in question is not and can
not be newly discovered evidence of the character provided for by law, not only because it does not
exclude the possibility that testatrix had somewhat improved in health, which possibility became a
reality at the time she made her will because she was then in the full enjoyment of her mental
faculties, according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio
Payad and Marciano Almario, but also because during the hearing of these proceedings in the Court
of First Instance, Attorney Viola was present, and the oppositor then could have very well called him
to the witness stand, inasmuch as her attorney already knew what Attorney Viola was to testify
about, yet she did not call him. The last fact is shown by the following excerpt from pages 148 to 150
of the transcript:
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to
present as the last witness Attorney Fernando Viola who was called by the petitioner
Victoria Payad to prepare the will of the deceased in his favor on September 5, 1933.
 COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS:
No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom you wish to call to the
witness stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge
Sison.

COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the
other party, Your Honor, is willing to admit what said witness is going to testify in the sense
that said Attorney Fernando Viola went to the house of the deceased on September 5, 1933,
for the purpose of talking to the deceased to draft the will upon petition of Mr. Victorio
Payad; if the other party admits that, then I am going waive the presentation of the witness
Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the other party would not admit
that proposition.

Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without
prejudice to the other party's calling the witness it may wish to call.

COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness
stand.

If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it
might have been because she considered his testimony unimportant and unnecessary, and at the
present stage of the proceedings, it is already too late to claim that what said attorney may now
testify is a newly discovered evidence.

For the foregoing considerations, those stated by this court in the original decision, and the additional
reason that, as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the
ground of newly discovered evidence is limited to ordinary cases pending in this court on bills of
exceptions, the motion for reconsideration and a new trial filed by the oppositor are hereby denied,
ordering that the record be remanded immediately to the lower court. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.
G.R. No. L-10907 June 29, 1957 AUREA MATIAS, petitioner, vs. HON. PRIMITIVO L. GONZALEZ,
ETC., ET AL., respondents.
J. Gonzales Orense for petitioner. Venancio H. Aquino for respondents.
CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L.
Gonzales, as Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No.
5213 of said court, entitled "Testate Estate of the Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a
document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on
May 8, 1952, at the age of 92 years. The heir to the entire estate of the deceased — except the
properties bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud,
Policarpio Salud, Santos Matias and Rafael Matias — is, pursuant to said instrument, Aurea Matias,
likewise, appointed therein as executrix thereof, without bond. Basilia Salud, a first cousin of the
deceased, opposed the probate of her alleged will, and, after appropriate proceedings, the court,
presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining said
opposition and denying the petition for probate. Subsequently, Aurea Matias brought the matter on
appeal to this Court (G.R. No. L-10751), where it is now pending decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as
special administrator of the estate of the deceased, and the appointment, in his stead of Ramon
Plata. The motion was set for hearing on February 23, 1956, on which date the court postponed the
hearing to February 27, 1956. Although notified of this order, Rodriguez did not appear on the date
last mentioned. Instead, he filed an urgent motion praying for additional time within which to answer
the charges preferred against him by Basilia Salud and for another postponement of said hearing. This
motion was not granted, and Basilia Salud introduced evidence in support of said charges,
whereupon respondent Judge by an order, dated February 27, 1956, found Rodriguez guilty of abuse
of authority and gross negligence, and, accordingly, relieved him as special administrator of the
estate of the deceased and appointed Basilia Salud as special administratrix thereof, to "be assisted
and advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser
of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata
. . . who is hereby appointed as co-administrator."
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she
be appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia
Salud is over eighty (80) years of age, totally blind and physically incapacitated to perform the duties
of said office, and that said movant is the universal heiress of the deceased and the person appointed
by the latter as executrix of her alleged will. This motion was denied in an order dated March 10,
1956, which maintained "the appointment of the three above named persons" — Basilia Salud,
Ramon Plata and Victorina Salud — "for the management of the estate of the late Gabina Raquel
pending final decision on the probate of the alleged will of said decedent." However, on March 17,
1956, Basilia Salud tendered her resignation as special administratrix by reason of physical disability,
due to old age, and recommended the appointment, in her place, of Victorina Salud. Before any
action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said
order of March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said
resignation, but objected to the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of
her antagonism to said Aurea Matias — she (Victorina Salud) having been the principal and most
interested witness for the opposition to the probate of the alleged will of the deceased — and
proposed that the administration of her estate be entrusted to the Philippine National Bank, the
Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution authorized by law
therefor, should the court be reluctant to appoint the movant as special administratrix of said estate.
This motion for reconsideration was denied on March 26, 1956.
Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested
authority to collect the rents due, or which may be due, to the estate of the deceased and to collect
all the produce of her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents
filed another motion praying for permission to sell the palay of the deceased then deposited in
different rice mills in the province of Cavite, which respondent judge granted on June 10, 1956. Later
on, or on July 10, 1956, petitioner instituted the present action against Judge Gonzales, and Victorina
Salud and Ramon Plata, for the purpose of annulling the above mentioned orders of respondent
Judge, upon the ground that the same had been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the choice of special
administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate
and, the executrix appointed in the alleged will of the deceased, that until its final disallowance —
which has not, as yet, taken place she has a special interest in said estate, which must be protected
by giving representation thereto in the management of said estate; that, apart from denying her any
such representation, the management was given to persons partial to her main opponent, namely,
Basilia Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one
of her (Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her
obvious unfitness for said office, she being over eighty (80) years of age and blind; that said disability
is borne out by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon
such ground; that the Rules of Court do not permit the appointment of more than one special
administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in
connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents
due to the deceased and the produce of her lands, as well to sell her palay, without previous notice to
the petitioner herein.
Upon the other hand, respondents maintain that respondent Judge acted with the scope of his
jurisdiction and without any abuse of discretion; that petitioner can not validly claim any special
interest in the estate of the deceased, because the probate of the alleged will and testament of the
latter — upon which petitioner relies — has been denied; that Horacio Rodriguez was duly notified of
the proceedings for his removal; and that Victorina Salud and Ramon Plata have not done anything
that would warrant their removal.
Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge,
for the following reasons:
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated
February 17, 1956, the record shows that petitioner herein received copy of said motion of February
24, 1956, or the date after that set for the hearing thereof. Again, notice of the order of respondent
Judge, dated February 23, 1956, postponing said hearing to February 27, 1956, was not served on
petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and
the appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no
notice that her main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would
be considered for the management of said. As a consequence, said petitioner had no opportunity to
object to the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her
assistant and adviser, and the order of February 27, 1956, to this effect, denied due process to said
petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise
respondent Judge would not have directed that she "be assisted and advised by her niece Victorina
Salud," and that the latter "shall always act as aide, interpreter and adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud,
Victorina Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge
maintained "the appointment of the three (3) above-named persons for the management of the
estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea
Matias and Basilia Salud regarding the person to be appointed special administrator of the estate of
the deceased. The former proposed Horacio Rodriguez, whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11, 1952, the Court, then presided over by Hon. Jose
Bernabe, Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon
the ground that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital,
resides In the City of Manila, the former, a practicing lawyer and a former public prosecutor, and
later, mayor of the City of Cavite, is a resident thereof. In other words, the order of resident thereof.
In other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and
appointing Victorina Salud to the management of the estate, amounted to a reversal of the
aforementioned order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied by
respondent Judge, the order to this effect is not, as yet, final and executory. It is pending review on
appeal taken by Aurea Matias. The probate of said alleged will being still within realm of legal
possibility, Aurea Matias has — as the universal heir and executrix designated in said instrument — a
special interest to protect during the pendency of said appeal. Thus, in the case of Roxas vs.
Pecson* (46 Off. Gaz., 2058), this Court held that a widow, designated as executrix in the alleged will
and testament of her deceased husband, the probate of which had denied in an order pending
appeal, "has . . . the same beneficial interest after the decision of the court disapproving the will,
which is now pending appeal, because the decision is not yet final and may be reversed by the
appellate court."
7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely,
one, represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong.
Inasmuch as the lower court had deemed it best to appoint more than one special administrator,
justice and equity demands that both factions be represented in the management of the estate of the
deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may
be appointed to administrator temporarily" the estate of the deceased, must be considered in the
light of the facts obtaining in said case. The lower court appointed therein one special administrator
for some properties forming part of said estate, and a special administratrix for other properties
thereof. Thus, there were two (2) separate and independent special administrators. In the case at bar
there is only one (1) special administration, the powers of which shall be exercised jointly by two
special co-administrators. In short, the Roxas case is not squarely in point. Moreover, there are
authorities in support of the power of courts to appoint several special co-administrators (Lewis vs.
Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs.
Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-
hear the matter of removal of Horacio Rodriguez and appointment of special administrators, after
due notice to all parties concerned, for action in conformity with the views expressed herein, with
costs against respondents Victorina Salud and Ramon Plata. It is so ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Reyes, J.B.L. and
Felix, JJ.,concur.
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:
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.

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.
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.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.

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

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the 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
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.
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No.
6284,1 just decided by this court, wherein there was an application for the probate of an alleged last
will and testament of the same person the probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will
and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A.
M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said will
Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or write, the same had been read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred
to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the
probate of this later will were pending at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to probate upon
the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix
to the will for and on her behalf looked more like the handwriting of one of the other witnesses to
the will than that of the person whose handwriting it was alleged to be. We do not believe that the
mere dissimilarity in writing thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was
written by Severo Agayan at her request and in her presence and in the presence of all the witnesses
to the will. It is immaterial who writes the name of the testatrix provided it is written at her request
and in her presence and in the presence of all the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must afterwards
sign his own name; and that, in view of the fact that, in the case at bar, the name signed below that
of the testatrix as the person who signed her name, being, from its appearance, not the same
handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such fact
indicating that the person who signed the name of the testatrix failed to sign his own. We do not
believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his expenses
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each. . . .
This is the important part of the section under the terms of which the court holds that the person
who signs the name of the testator for him must also sign his own name The remainder of the section
reads:
The attestation shall state the fact that the testator signed the will, or caused it to be signed
by some other person, at his express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the
will was in fact signed and attested as in this section provided.
From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her presence and in the
presence of each other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that it is not essential to the validity of the
will. Whether one parson or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that
the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the
law; and the reasons underlying the provisions of the statute relating to the execution of wills do not
in any sense require such a provision. From the standpoint of language it is an impossibility to draw
from the words of the law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is unable to
write may be signed by another by express direction to any instrument known to the law. There is no
necessity whatever, so far as the validity of the instrument is concerned, for the person who writes
the name of the principal in the document to sign his own name also. As a matter of policy it may be
wise that he do so inasmuch as it would give such intimation as would enable a person proving the
document to demonstrate more readily the execution by the principal. But as a matter of essential
validity of the document, it is unnecessary. The main thing to be established in the execution of the
will is the signature of the testator. If that signature is proved, whether it be written by himself or by
another at his request, it is none the less valid, and the fact of such signature can be proved as
perfectly and as completely when the person signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the lack of the signature of the person signing the
name of the principal is, in the particular case, a complete abrogation of the law of wills, as it rejects
and destroys a will which the statute expressly declares is valid.
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 regard to the form, conditions and validity of 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 parte Arcenas, 4 Phil. Rep., 700.)
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 vogue under the former laws that governed in 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, Maria Salomon, in accordance with the law.
G.R. No. 122880 April 12, 2006 FELIX AZUELA, Petitioner, vs. COURT OF APPEALS,
GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.
DECISION TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to
the due execution of this document, the Court is provided the opportunity to assert a few important
doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written is
fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is
fatally defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to
deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the
due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills — that they be acknowledged before a notary public by the testator and the witnesses.
A notarial will executed with indifference to these two codal provisions opens itself to nagging
questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC)
of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of
Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling
habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at
patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix
Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa lote
numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng
Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na
nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong
ito ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
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 # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages
of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely:
petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner
prayed that the will be allowed, and that letters testamentary be issued to the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda Castillo claimed that the will is
a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation
of real property, all centering on petitioner’s right to occupy the properties of the decedent.3 It also
asserted that contrary to the representations of petitioner, the decedent was actually survived by 12
legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was
subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance
with law. She pointed out that decedent’s signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments are among the central matters to
this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC
favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to
the formalities in the execution of a will x x x with the end in view of giving the testator more
freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor’s arguments
that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and
attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements
of a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the
signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni
Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat at bawa’t dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is
considered by this Court as a substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed by the subscribing witnesses
at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on the
left margin of the second page of the will containing the attestation clause and acknowledgment,
instead of at the bottom thereof, substantially satisfies the purpose of identification and attestation
of the will.
With regard to the oppositor’s argument that the will was not numbered correlatively in letters
placed on upper part of each page and that the attestation did not state the number of pages
thereof, it is worthy to note that the will is composed of only two pages. The first page contains the
entire text of the testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a serious nature as to
invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left
margin of the second page, which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery, the
testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for probate. 9 The Court of Appeals
noted that the attestation clause failed to state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages
used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory,
and thus susceptible to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we
replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of
the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to
state the number of pages of the will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the
will.12 There was an incomplete attempt to comply with this requisite, a space having been allotted
for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that among the
defects of the will in question was the failure of the attestation clause to state the number of pages
contained in the will.15 In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might easily be so
prepared that the removal of a sheet would completely change the testamentary dispositions of
the will and in the absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of the following sheets or
pages. If, on the other hand, the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages and the forging of the signatures
of the testator and witnesses in the margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the
number of sheets or pages used. This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal." 17 It was
further observed that "it cannot be denied that the x x x requirement affords additional security
against the danger that the will may be tampered with; and as the Legislature has seen fit to
prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the following distinction which petitioner is
unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not
state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of
pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson
versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state the
number of pages used in the will, however, the same was found in the last part of the body of the
Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which
requires that the attestation clause shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the prejudice of the heirs to
whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the
Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages including this
page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the
Will. The will does not even contain any notarial acknowledgment wherein the number of pages of
the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time
when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering that the
requirement that the attestation state the number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of interpretation of
the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from
the philosophy that governed these two cases. Article 809 of the Civil Code states: "In the absence of
bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections
in the form of attestation or in the language used therein shall not render the will invalid if it is
proved that the will was in fact executed and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the
underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project
consists in the [liberalization] of the manner of their execution with the end in view of giving the
testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills." 24 However, petitioner conveniently
omits the qualification offered by the Code Commission in the very same paragraph he cites from
their report, that such liberalization be "but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the
testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado, speaking for
the Court on the conflicting views on the manner of interpretation of the legal formalities required in
the execution of the attestation clause in wills. 27 Uy Coque and Andrada are cited therein, along with
several other cases, as examples of the application of the rule of strict construction. 28 However, the
Code Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to
how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an examination of
the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarized. All these
are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause is one of
the defects which cannot be simply disregarded. In Caneda itself, the Court refused to allow the
probate of a will whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each other, 30 the other
omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can
be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence,
will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being
assailed. However, those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will itself." 31 Thus, a failure by
the attestation clause to state that the testator signed every page can be liberally construed, since
that fact can be checked by a visual examination; while a failure by the attestation clause to state that
the witnesses signed in one another’s presence should be considered a fatal flaw since the
attestation is the only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was written
remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease in the pages.33 The
failure to state the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as was the
situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation
clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of the
Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or intercalation of notarial
wills.34 Compliance with these requirements, however picayune in impression, affords the public a
high degree of comfort that the testator himself or herself had decided to convey property post
mortem in the manner established in the will. 35 The transcendent legislative intent, even as
expressed in the cited comments of the Code Commission, is for the fruition of the testator’s
incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will
itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures
of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the
bottom of the attestation clause which after all consists of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin."37 While three (3) Justices38 considered the
signature requirement had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. 39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite that the
will be "attested and subscribed by [the instrumental witnesses]." The respective intents behind
these two classes of signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they are signing forms
part of the will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of
the page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses’ undertakings in the clause, since the signatures that do appear on the page were directed
towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the attestation
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.
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.

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 Lungsod ng Maynila."40 By no manner of
contemplation can those words be construed as an acknowledgment. An acknowledgment is the act
of one who has executed a deed in going before some competent officer or court and declaring it to
be his act or deed.41 It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is his/her own free
act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor.42 Ordinarily, the language of
the jurat should avow that the document was subscribed and sworn before the notary public, while in
this case, the notary public averred that he himself "signed and notarized" the document. Possibly
though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the
executors of the document, which in this case would involve the decedent and the instrumental
witnesses.
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 no longer 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 that has disabused the notion that these two requirements be construed as
mandatory.45Taken in isolation, these omissions, by themselves, may not be sufficient to deny
probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they
need not be dwelt on, though indicative as they may be of a general lack of due regard for the
requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice

Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless
remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An acknowledgement is
not an empty meaningless act.43 The acknowledgment coerces the testator and the instrumental
witnesses to declare before an officer of the law that they had executed and subscribed to the will as
their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for
the criminal prosecution of persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator. It also provides a further degree of assurance that
G.R. No. L-5971 February 27, 1911 BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA be held to have executed the instrument in the presence of each other if it appears that they would
RIMANDO, defendant-appellant. 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
Valerio Fontanilla and Andres Asprer for appellant. Anacleto Diaz for appellees. 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
CARSON, J.: casting his eyes in the proper direction and without any physical obstruction to prevent his doing so."
The only question raised by the evidence in this case as to the due execution of the instrument And the decision merely laid down the doctrine that the question whether the testator and the
propounded as a will in the court below, is whether one of the subscribing witnesses was present in subscribing witnesses to an alleged will sign the instrument in the presence of each other does not
the small room where it was executed at the time when the testator and the other subscribing depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet subscription by each of them, but that at that moment existing conditions and their position with
away, in a large room connecting with the smaller room by a doorway, across which was hung a relation to each other were such that by merely casting the eyes in the proper direction they could
curtain which made it impossible for one in the outside room to see the testator and the other have seen each other sign. To extend the doctrine further would open the door to the possibility of all
subscribing witnesses in the act of attaching their signatures to the instrument. 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.
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 The decree entered by the court below admitting the instrument propounded therein to probate as
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against
affirmance of the decree admitting the document to probate as the last will and testament of the the appellant.
deceased.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.
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
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 write
his name, under his express direction, in the presence of the instrumental witnesses, and that
the lacier witnesses and signed the will and the pages thereof in the presence of the testator and
of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to the
witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place
so heavy an import on the space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of Identification of such paper as the will which was executed by the testator.
(Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the defect
in the place of signatures of the witnesses, he would have found the testimony sufficient to establish
the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at
the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of
pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or sheets
upon which the win is written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission of some of the pages
of the will to the prejudice of the heirs to whom the property is intended to be bequeathed
(In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is missing or
is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this
case out of the rigid rule of construction and places it within the realm of similar cases where
a broad and more liberal view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:
... Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and
two other witnesses did sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix
on account of the inadvertence of a single witness over whose conduct she had no control where
the purpose of the law to guarantee the Identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the
will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court which
denied the probate of tile will, the motion for reconsideration of the denial of probate, and the
motion for appointment of a special administrator are set aside. The respondent court is ordered to
allow the probate of the wig and to conduct further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.
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 for the
missing signature of attorney Natividad on page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is signed by the aforesaid
attesting witnesses; that the will is written in the language known to and spoken by the
testatrix that the attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate copies; and that
both the original and the duplicate copies were duly acknowledged before Notary Public
Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits
that he may have lifted two pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures
of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or
affixed on the same occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and with undue influence
and pressure because the testatrix was deceived into adopting as her last will and testament
the wishes of those who will stand to benefit from the provisions of the will, as may be
inferred from the facts and circumstances surrounding the execution of the will and the
provisions and dispositions thereof, whereby proponents-appellees stand to profit from
properties held by them as attorneys-in-fact of the deceased and not enumerated or
mentioned therein, while oppositors-appellants are enjoined not to look for other
properties not mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary
public who acknowledged the will; and Atty. Samson, who actually prepared the documents;
that the will and its duplicate were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin
Samson, together before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The opinion of expert for
oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate
original were not written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted by expert Martin
Ramos for the proponents, but principally because of the paucity of the standards used by
him to support the conclusion that the differences between the standard and questioned
signatures are beyond the writer's range of normal scriptural variation. The expert has, in
fact, used as standards only three other signatures of the testatrix besides those affixed to
the original of the testament (Exh. A); and we feel that with so few standards the expert's
opinion and the signatures in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that the are radical differences that would justify the charge of forgery,
taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings were
affixed to different kinds of paper, with different surfaces and reflecting power. On the
whole, therefore, we do not find the testimony of the oppositor's expert sufficient to
overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag,
14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other property and that
they should respect the distribution made in the will, under penalty of forfeiture of their
shares in the free part do not suffice to prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into the hands of
non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals
in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and
exclude each other; their joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and
the evidence on record attests to the full observance of the statutory requisites. Otherwise,
as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
oversight is shown by his own testimony as well as by the duplicate copy of the will, which Makalintal, JJ., concur.
bears a complete set of signatures in every page. The text of the attestation clause and the Barrera and Dizon, JJ., took no part.
acknowledgment before the Notary Public likewise evidence that no one was aware of the
defect at the time.

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

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

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

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.
G.R. No. L-5826 April 29, 1953 Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET AL., oppositors-appellants.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan,
Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its
attestation clause is not signed by the attesting witnesses. There is no question that the signatures of
the three witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause
cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom
thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin
conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be
signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So
ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of the law
and, therefore, should be admitted to probate . It appears that the will was signed by the testator
and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand
margin. The witnesses testified not only that the will was signed by the testator in their presence and
in the presence of each other but also that when they did so, the attestation clause was already
written thereon. Their testimony has not been contradicted. The only objection set up by the
oppositors to the validity of the will is the fact that the signatures of the instrumental witnesses do
not appear immediately after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil., 476),
this court said that when the testamentary dispositions "are wholly written on only one sheet signed
at the bottom by the testator and three witnesses (as the instant case),their signatures on the left
margin of said sheet would be completely purposeless." In such a case, the court said, the
requirement of the signatures on the left hand margin was not necessary because the purpose of the
law — which is to avoid the substitution of any of the sheets of the will, thereby changing the
testator's dispositions — has already been accomplished. We may say the same thing in connection
with the will under consideration because while the three instrumental witnesses did not sign
immediately by the majority that it may have been only added on a subsequent occasion and not at
the uncontradicted testimony of said witnesses to the effect that such attestation clause was already
written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must not lose sight of the
fact that it i not the object of the law to restrain and curtail the exercise of the right to make
a will. So when an interpretation already given assures such ends, any other interpretation
already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary useless and frustrative of the testator's last
will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of interpretation of
wills, the purpose of which, in case of doubt, is to give such interpretation that would have the effect
of preventing intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting: I concur in Mr. Justice Bautista's dissenting opinion and may add that the
majority decision erroneously sets down as a fact that the attestation clause was no signed when the
witnesses signatures appear on the left margin and the real and only question is whether such
signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide that the attesting
witness should sign the clause at the bottom. In the absence of such provision, there is no reason why
signatures on the margin are not good. A letter is not any the less the writter's simply because it was
signed, not at the conventional place but on the side or on top.
Feria, J., concurs.