VITUG VS CAFACTS: This case is a chapter in an earlier suit decided by this Court involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A. naming private respondent Rowena Faustino-Corona executrix. In said decision, the court upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitugs estate with her (Mrs. Vitugs) widower, petitioner Romarico G. Vitug, pending probate.Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate, plus interests, which he claimed were personal funds. As found by the CA the alleged advances were spent for the payment of estate tax, deficiency estate tax, and increment thereto.Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for concealment of funds belonging to the estate.Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank.The trial courts upheld the validity of such agreement.On the other hand, the CA held that the survivorship agreement constitutes a conveyance mortis causa which did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code, and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code.ISSUE: W/N the survivorship agreement between the spouses Vitug constitutes a donation?HELD: NO. The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. In other words, the bequest or device must pertain to the testator. In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. Peoples Bank and Trust Co., we rejected claims that a survivorship agreement purports to deliver one partys separate properties in favor of the other, but simply, their joint holdings.There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marital relations.Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouses own properties to the other.It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the Court of Appeals, by mere stipulation and that it is no cloak to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an and/or account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation.The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased.

Vitug vs. CA DigestVitug v. Court of Appeals

Facts:1. The case is a chapter in an earlier suit involving the issue on two (2) wills of the late Dolores Vitug who died in New York, USA in Nov 1980. She named therein private respondent Rowena Corona (Executrix) while Nenita Alonte was co-special administrator together with petitioner Romarico pending probate.

2. In January 1985, Romarico filed a motion asking for authorization of the probate court to sell shares of stocks and real property of the estate as reimbursements for advances he made to the estate. The said amount was spent for payment of estate tax from a savings account in the Bank of America.

3. Rowena Corona opposed the motion to sell contending that from the said account are conjugal funds, hence part of the estate. Vitug insisted saying that the said funds are his exclusive property acquired by virtue of a survivorship agreement executed with his late wife and the bank previously. In the said agreement, they agreed that in the event of death of either, the funds will become the sole property of the survivor.

4. The lower court upheld the validity of the survivorship agreement and granted Romarico's motion to sell. The Court of Appeals however held that said agreement constituted a conveyance mortis causa which did not comply with the formalities of a valid will. Further, assuming that it is donationinter vivos, it is a prohibited donation. Vitug petitioned to the Court contending that the said agreement is an aleatory contract.

Issue: Whether or not the conveyance is one ofmortis causahence should conform to the form required of wills

NO.The survivorship agreement is a contract which imposed a mere obligation with a term--being death. Such contracts are permitted under Article 2012 on aleatory contracts. When Dolores predeceased her husbandm the latter acquired upon her death a vested right over the funds in the account. The conveyance is therefore notmortis causa.

Suroza v. HonradoFACTS:Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a boy named Agapito. Agapito and his wife Nenita de Vera had a daughter named Lilia. Nenita became Agapitos guardian when he became disabled. A certain Arsenia de la Cruz also wanted to be his guardian in another proceeding but it was dismissed. Arsenia then delivered a child named Marilyn Sy to Marcelina who brought her up as a supposed daughter of Agapito. Marilyn used the surname Suroza although not legally adopted by Agapito. When Marcelina (who was an illiterate) was 73 years old, she supposedly executed a notarial will which was in English and thumbmarked by her. In the will, she allegedly bequeathed all her properties to Marilyn. She also named as executrix her laundrywoman, Marina Paje. Paje filed a petition for probate of Marcelinas will. Judge Honrado appointed Paje as administratrix and issued orders allowing the latter to withdraw money from the savings account of Marcelina and Marilyn, and instructing the sheriff to eject the occupants of testatrixs house, among whom was Nenita. She and the other occupants filed a motion to set aside the order ejecting them, alleging that Agapito was the sole heir of the deceased, and that Marilyn was not the decedents granddaughter. Despite this, Judge Honrado issued an order probating Marcelinas will.Nenita filed an omnibus petition to set aside proceedings, admit opposition with counter-petition for administration and preliminary injunction, and an opposition to the probate of the will and a counter-petition for letters of administration, which were dismissed by Judge Honrado. Instead of appealing, Nenita filed a case to annul the probate proceedings but Judge Honrado dismissed it. The judge then closed the testamentary proceeding after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid.Ten months later, Nenita filed a complaint before the SC, charging Judge Honrado with having probated the fraudulent will of Marcelina. She 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 will was written. She further alleged that Judge Honrado did not take into account the consequences of the preterition of testatrixs son, Agapito. Judge Honrado in his comment did not deal specifically with the allegations but merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion, she asked for a thirty day period within which to vacate the house of the testatrix. Nenita subsequently filed in the CA a petition for certiorari and prohibition against Judge Honrado wherein she prayed that the will, the decree of probate and all the proceedings in the probate case be declared void. The CA dismissed the petition because Nenitas remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari. Relying on that decision, Judge Honrado filed a MTD the administrative case for having allegedly become moot and academic.ISSUE:W/N 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.HELD:YES. 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. 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.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 the 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.

PAYAD,vs.TOLENTINO,FACTS:Both parties in this case appeal from an order of the trial court denying the probate of the alleged will of Leoncia Tolentino, deceased on the ground that the attestation clause wasnot in conformity with the requirements of law in that it is not stated therein that the testatrixcaused Attorney Almario to write her name at her express direction.ISSUE:Whether the attestation clause does not state that the testratrix requested AttorneyAlmario to write her name.HELD:The evidence of record established the fact that Leoncia Tolentino, assisted by AttorneyAlmario, placed her thumb mark on each and every age of time questioned will and the saidattorney merely wrote her name to indicate the place where she placed said thumb mark. Inother words Attorney Almario did not sign for the testatrix. She signed for placing her thumbmark on each and every page thereof "A statute requiring a will to be 'signed' is satisfied if thesignature is made by the testator's mark." It is clear, therefore, that it was not necessary that theattestation clause in question should state that the testatrix requested Attorney Almario to signher name inasmuch as the testratrix signed the will in question in accordance with law.The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino,deceased is admitted to probate.

Garcia v. Lacuesta90:489 | Castillo

FACTS: This case involves the will of Antero Mercado, which among other defects was signed by the testator through a cross mark (an X). The will was signed by Atty. Javier who wrote the name of Mercado as testator and the latter allegedly wrote a cross mark after his name. The CFI allowed the will but the CA disallowed it because its attestation clause was defective for failing to certify 1) that the will was signed by Atty. Javier at the express direction of the testator, 2) that the testator wrote a cross at the end of his name after Atty. Javier signed for him, and 3) that the 3 witnesses signed the will in the presence of the testator and of each other.

ISSUE: Whether the will should be allowed despite the defect of the attestation clause since the testator had placed a cross mark himself as his signature.HELD: The attestation clause is fatally defective for failing to state that Mercado directed Javier to write the testators name under his express direction. Petitioners argument that such recital is unnecessary because the testator signed the will himself using a cross mark which should be considered the same as a thumb-mark (which has been held sufficient in past cases) is not acceptable. A cross mark is not the same as a thumb mark, because the cross mark does not have the same trustworthiness of a thumb mark.

Garcia v. Lacuesta DigestGarcia v. LacuestaG.R. L-4067 November 29, 1951Ponente: Paras, C.J.

Facts:1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943. The said will was written in Ilocano dialect.

2. The will appears to have been signed by Atty. Florentino Javier who wrote the name of the testator followed below by 'A ruego del testador' and the name of Florentino Javier. In effect, it was signed by another although under the express direction of the testator. This fact however was not recited in the attestation clause. Mercado also affixed a cross on the will.

3. The lower court admitted the will to probate but this order was reversed by the Court of Appeals on the ground that the attestation failed to recite the facts surrounding the signing of the testator and the witnesses.

Issue: Whether or not the attestation clause in the will is valid

HELD: NO the attestation is fatally defective for its failure to state that Antero or the testator caused Atty. Javier to write the former's name under his express direction as required by Sec. 618 of the Civil Procedure. Finally,on the cross affixed on the will by the testator, the Court held that it is not prepared to liken the mere sign of a cross to a thumbmark for obvious reasons- the cross does not have the trustworthiness of a thumbmark so it is not considered as a valid signature.

Garcia v. Lacuesta

90 Phil 189 Succession Signing Using an X MarkAntero Mercado left a will dated January 3, 1943. The will appears to have been signed by Atty. Florentino Javier as he wrote the name of Antero Mercado and his name for the testatior on the will. HOWEVER, immediately after Antero Mercados will, Mercado himself placed an X mark.The attestation clause was signed by three instrumental witnesses. Said attestation clause states that all pages of the will 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. The attestation clause however did not indicate that Javier wrote Antero Mercados name.ISSUE:Whether or not the will is valid.HELD:No. The attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testators name under his express direction, as required by Section 618 of the Code of Civil Procedure.But is there really a need for such to be included in the attestation clause considering that even though Javier signed for Antero, Antero himself placed his signature by virtue of the X mark, and by that, Javiers signature is merely a surplusage? That the placing of the X mark is the same as placing Anteros thumb mark.No. Its not the same as placing the testators thumb mark. It would have been different had it been proven that the X mark was Anteros usual signature or was even one of the ways by which he signs his name. If this were so, failure to state the writing by somebody else would have been immaterial, since he would be considered to have signed the will himself.

Barut v. Cabacungan21:461 | Casuela

FACTS:Barut applied for the probate of the will of deceased, Maria Salomon. The testatrix stated in the will that being unable to read or write, the will was 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 was contested by a number of the relatives of the deceased on various grounds.The probate court found that the will was not entitled to probate because 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 to the person whose handwriting it was alleged to be (i.e. The probate court denied probate because the signature seemed to not have been by Severo Agayan but by another witness).

ISSUE:Was the dissimilarity in handwriting sufficient to deny probate of the will?

HELD:No. The SC found that the mere dissimilarity in writing is sufficient to overcome the uncontradicted testimony of all the witnesses that the signature of the testatrix was written by Severo Agayan. It is also 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. Based on Section 618 of the Code of Civil Procedure, it is 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 3 witnesses and that they attested and subscribed it in her presence and in the presence of each other. It may be wise that the one who signs the testators name signs also his own; but that is not essential to the validity of the will.The court also held that the 3 cases cited by the lower court was not applicable. In those cases, the person who signed the will for the testator wrote his own name instead of the testators, so that the testators name nowhere appeared in the will, and were thus wills not duly executed.Barut v. Cabacungan DigestBarut vs. CabacunganG.R. L-6825 Febriary 15, 1912Ponente: SC Justice Moreland

Facts:1.Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907. The said will was witnessed by 3 persons. From the terms it appears that the petitioner received a larger part of decedent's property. After this disposition, the testatrix revoked all other wills and stated that since she is unable to read nor write, the will was read to her and that she has instructed Severino Agapan, one of the witnesses to sign her name in her behalf.

2. The lower court ruled that the will is not entitled to probate on the sole ground that the handwriting of the person who signed the name of the testatrix does not appear to be that of Agapan but that of another witness.

Issue: Whether or not a will's validity is affected when the person instructed by a testator to write his name did not sign his name

HELD: No, it is immaterial who wrote the name of the testator provided it is written at her request and in her present, and in the presence of the witnesses. This is the only requirement under Sec. 618 of the Civil Code of procedure at that time.

Icasiano v. IcasianoFACTS: Celso Icasiano filed a petition for the allowance and admission to probate of the alleged will of Josefa Villacorte, and for his appointment as executor thereof. Natividad and Enrique Icasiano, a daughter and son of the testatrix, filed their opposition thereto. During the course of the trial, on 19 March 1959, Celso, started to present his evidence. But later, on 1 June 1959, he then filed an amended and supplemental petition, alleging that the decedent had left a will executed in duplicate and with all the legal requirements, and that he was submitting the duplicate to the court, which he found only on 26 May 1959. Natividad and Enrique filed their opposition, but the will and its duplicate was admitted to probate by the trial court. Hence, this appeal by the oppositors.Oppositors-appellants (Natividad and Enrique) in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate 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.ISSUE:Was the trial court correct in admitting the will and its duplicate to probate given the allegations of forgery of the testators signature, or that the will was executed under circumstances constituting fraud and undue influence and pressure?

(Not raised by the appellants in the case but discussed by the Court and in Sirs book) Is the failure of one of the witnesses to sign a page of the will fatal to its validity?HELD:The Supreme Court dismissed the appeal, holding that both the will and its duplicate are valid in all respects.

On the allegations of forgery, fraud and undue influence:The Court is satisfied that all the requisites for the validity of a will have been complied with. The opinion of a handwriting expert trying to prove forgery of the testatrix's signature failed to convince the Court, not only because it is directly contradicted by another expert but principally because of the paucity of the standards used by him (only three other signatures), considering the advanced age of the testatrix, the evident variability of her signature, and the effect of writing fatigue.Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable, considering that standard and challenged writings were affixed to different kinds of paper, with different surfaces and reflecting power. On the whole, the testimony of the oppositor's expert is insufficient to overcome that of the notary and the two instrumental witnesses as to the wills execution, which were presented by Celso during the trial.Nor is there adequate evidence of fraud or undue influence. The fact that some heirs are more favored than others is proof of neither. Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate. The testamentary disposition 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 occasion. It is also well to note that 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.

Abangan vs. Abangan DigestAbangan v. Abangan

Facts:1. On September 1917, the CFI of Cebu admitted to probate Ana Abangan's will executed on July 1916. It is from this decision which the opponent appealed. It is alleged that the records do not show the testatrix knew the dialect in which the will was written.

Issue: Whether or not the will was validly probated

YES. The circumstance appearing on the will itself, that it was executed in Cebu City and in the dialect of the place where the testarix is a resident is enough to presume that she knew this dialect in the absence of any proof to the contrary. On the authority of this case and that of Gonzales v Laurel, it seems that for the presumption to apply, the following must appear: 1) that the will must be in a language or dialect generally spoken in the place of execution, and, 2) that the testator must be a native or resident of the said localityAbangan v AbanganTrial Court admitted Ana Abangansprobate.The will is described in thefollowing manner: First sheet:Contains all the disposition ofthe testatrix.Signedat the bottombyMartin Montalban (in thename and under the directionof Ana Abangan) Signed by three witnessesSecond sheet Contains only the attestationclause.Duly signed by the same threewitnesses at the bottom. Was not signed by thetestatrix herself Anastacia Abangan (differentperson) et al. appealed from thisdecision. She says that the probateshould have been denied on threegrounds:Neither of the sheets weresignedon the left marginbythe testatrix and the threewitnesses The pages were notnumbered by lettersIt was written in a dialect that the testatrix did not understand.Issue: WON the probate should have be admitted.Ruling: Yes. The trial court was correct in admitting the probate.1. Re: signing on the left margin- The object of Act 2645, which requires that every sheet should be signed on the left margin, is only to avoid the substitution of any sheet, thereby changing the dispositions of the testatrix.- Act 2645 only took into consideration cases of wills written on several sheets, which did not have to be signed at the bottom by the testator and the witnesses.- But when the dispositions are duly written only on one sheet, and signed at the bottom by the testator and the witnesses ,the signatures on the left would be purposeless.- If the signatures at the bottom already guarantee its authenticity, another signature on the left margin would be unnecessary.- This interpretation of Act 2645 also applies to the page containing the attestation clause (the second sheet). Such a signature on the margin by the witnesses would be a formality not required by the statute.- It is also not required that the testatrix sign on the attestation clause because the attestation, as its name implies, appertains only to the witnesses and not the testator since the testator does attest, but executes the will.2. Re: Page numbering-Act 2645s object in requiring thiswas to know whether any sheet of the willhas been removed.- But when all the dispositive partsof the will are written on one sheet only, theobject of the Act 2645 disappears becausethe removal of this single sheet althoughunnumbered, cannot be hidden.3. Re: dialect- The circumstance appearing in thewill itself that the same was executed in thecity of Cebu and in the dialect of thislocality where the testatrix was a neighborCagro v. CagroFACTS:Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly made a will prior to his death, the will was probated before the CFI of Samar. However, the oppositors-appellant objected the probate proceeding alleging that the will is fatally defective because its attestation clause is not signed by the attesting witnesses. It is undisputed 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.

ISSUE:W/N the will may be probated even if the signatures of the witnesses do not appear at the bottom of the attestation clause, and instead, they were placed on the left-hand margin of the page containing the same.

HELD:No. The position taken by the oppositor-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-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.

Nera v. Rimando18:450 | Cukingnan

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

HELD:Citing Jaboneta v. Gustilo, the court 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. The question is whether the testator and the subscribing witnesses to an alleged will signed the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.Nera v. RimandoG.R. L-5971 February 27, 1911Ponente: Carson, J.:

'Test of Presence'

Facts:1. At the time the will was executed, in a large room connecting with a smaller room by a doorway where a curtain hangs across, one of the witnesses was in the outside room when the other witnesses were attaching their signatures to the instrument.

2. The trial court did not consider the determination of the issue as to the position of the witness as of vital importance in determining the case. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would not be sufficient to invalidate the execution of the will.

3. The CA deemed the will valid.

Issue: Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing their signatures.

HELD: YESThe Court is unanimous in its opinion that had the witnesses been proven to be in the outer room when the testator and other witnesses signed the will in the inner room, it would have invalidated the will since the attaching of the signatures under the circumstances was not done 'in the presence' of the witnesses in the outer room. The line of vision of the witness to the testator and other witnesses was blocked by the curtain separating the rooms.

The position of the parties must be such that with relation to each other at the moment of the attaching the signatures, they may see each other sign if they chose to.

In the Jaboneta case, the true test of presence is not whether or not they actualy saw each other sign but whether they might have seen each other sign if they chose to doso considering their physical, mental condition and position in relation to each other at the moment of the inscription of the signature.

Cruz v. VillasorFACTS:The CFI of Cebu allowed the probate of Valente Z. Cruzs last will and testament. His surviving spouse, Agapita Cruz, opposed the allowance of the will alleging it was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was execute without the testator having been fully informed of the content thereof, particularly as to what properties he was disposing and that the supposed last will and testament was not executed in accordance with law. Agapita appealed the allowance of the will by certiorari.

ISSUE: W/N the will was executed in accordance with law (particularly Articles 805 and 806 of the NCC, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public.).

HELD: NO. Of the three instrumental witnesses to the will, one of them (Atty. Teves) is at the same time the Notary Public before whom the will was supposed to have been acknowledged. The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To acknowledge before means to avow (Javellana v. Ledesma; Castro v. Castro); to own as genuine, to assent, to admit; and "before" means in front or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he would have to avow assent, or admit his having signed the will in front of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. To permit such a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral arrangement (Balinon v. De Leon). That function would defeated if the notary public were one of the attesting instrumental witnesses. It would place him in inconsistent position and the very purpose of acknowledgment, which is to minimize fraud, would be thwarted.Admittedly, there are American precedents holding that notary public may, in addition, act as a witness to the executive of the document he has notarized. There are others holding that his signing merely as notary in a will nonetheless makes him a witness thereon. But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred to in these cases merely acted as instrumental, subscribing attesting witnesses, and not as acknowledging witnesses. Here, the notary public acted not only as attesting witness but also acknowledging witness, a situation not envisaged by Article 805-06. Probate of will set aside.Cruz v. VillasorG.R. L-32213 November 26, 1973Ponente: Esguerra, J.:

Facts:1. The CFI of Cebu allowed the probate of the last will and testament of the late Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it was executed through fraud, deceit, misrepresentation, and undue influence. He further alleged that the instrument was executed without the testator having been informed of its contents and finally, that it was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was acknowledged. Despite the objection, the lower court admitted the will to probate on the ground that there is substantial compliance with the legal requirements of having at least 3 witnesses even if the notary public was one of them.

Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC

HELD: NO.The will is not valid. The notary public cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the said will. An acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and 'before' means in front of or preceding in space or ahead of. The notary cannot split his personality into two so that one will appear before the other to acknowledge his participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or immoral arrangements, a function defeated if he were to be one of the attesting or instrumental witnesses. He would be interested in sustaining the validity of the will as it directly involves himself and the validity of his own act. he would be in an inconsistent position, thwarting the very purpose of the acknowledgment, which is to minimize fraud.

Javellana v. LedesmaFACTS:The Court of First Instance of Iloilo admitted to probate the documents in the Visayan dialectas the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Matea Ledesma, sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. Ledesma is questioning the validity of the codicil contending that the fact that the notary did not sign the instrument in the presence of the testator and the witness made the codicil was not executed in conformity with the law

ISSUE: W/N the codicil was validly executed.

HELD:The instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute the usual and habitual for what differs slightly from it. Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. The new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in this case. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses cannot be said to violate the rule that testaments should be completed without interruption. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed.

Avera vs. Garcia and RodriguezFacts:In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of oneEsteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in thecapacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed forthe hearing, the proponent of the will introduced one of the three attesting witnesses whotestifiedwith details not necessary to be here specifiedthat the will was executed with allnecessary external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness was corroborated by the person whowrote the will at the request of the testator. Two of the attesting witnesses were notintroduced, nor was their absence accounted for by the proponent of the will.When the proponent rested the attorney for the opposition introduced a single witness whosetestimony tended to show in a vague and indecisive manner that at the time the will was madethe testator was so debilitated as to be unable to comprehend what he was about.After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the testator at the time of the making of the will was of sound mind anddisposing memory and that the will had been properly executed. He accordingly admitted thewill to probate.Issue:1) whether a will can be admitted to probate, where opposition is made, upon the proof of asingle attesting witness, without producing or accounting for the absence of the other two2) whether the will in question is rendered invalid by reason of the fact that the signature of thetestator and of the three attesting witnesses are written on the right margin of each page of thewill instead of the left marginRuling:1) When the petition for probate of a will is contested, the proponent should introduce all threeof the attesting witnesses, if alive and within reach of the process of the court; and theexecution of the will cannot be considered sufficiently proved by the testimony of only one,without satisfactory explanation of the failure to produce the other two.

Garcia v. VasquezG.R. No. L-26808 March 28, 1969Fernando, J (Ponente)

Facts:1. Gliceria del Rosario executed 2 wills, one in June 1956, written in Spanish, a language she knew an spoke. The other will was executed in December 1960 consisting of only one page, and written in Tagalog. The witnesses to the 1960 will declared that the will was first read 'silently' by the testatrix before signing it. The probate court admitted the will.

2. The oppositors alleged that the as of December 1960, the eyesight of the deceased was so poor and defective that she could not have read the provisions contrary to the testimony of the witnesses.

Issue: Whether or not the will is valid

RULING: The will is not valid. If the testator is blind, Art. 808 of the New Civil Code (NCC) should apply.If the testator is blind or incapable of reading, he must be apprised of the contents of the will for him to be able to have the opportunityto object if the provisions therein are not in accordance with his wishes.

The testimony of her opthalmologist established that notwithstanding an operation to remove her cataract and being fitted with the lenses, this did not improve her vision. Her vision remained mainly for viewing distant objects and not for reading. There was no evidence that her vision improved at the time of the execution of the 2nd will. Hence, she was incapable of reading her own will. The admission of the will to probate is therefor erroneous.

Garcia v. VasquezFACTS:This is a petition for appeal from the CFI of Manila admitting to probate the will of Gliceria Avelino del Rosario (Gliceria) executed in 1960. Likewise, this is also an appeal to remove the current administrator, Consuelo Gonzales-Precilla( Consuelo) as special administratrix of the estate on the ground of Consuelo possesses interest adverse to the estate and to order the RD of Manila to annotate on the registered lands a notice of Lis Pendens. When Gliceria died she had no descendants, ascendants, bros or sisses and 90 yrs old. After which, her niece, Consuelo petitioned the court to be the administratrix of the properties. The court approved this because Consuelo has been was already managing the properties of the deceased during her lifetime. What the respondents allege is that in the last years of the deceased, Consuelo sought the transfer of certain parcels of land valued at 300k for a sale price of 30k to her husband Alfonso through fraud and intimidation. In addition, the oppositors presented evidence that Consuelo asked the court to issue new Certificates of Titles to certain parcels of land for the purpose of preparing the inventory to be used in the probate. Also shown was that NEW TCTs were issued by the RD for certain lands of the deceased after Consuelo asked for the old TCTs. At the end of the probate proceedings, the court ruled that Counsuelo should be made the administrator, and that the will was duly executed because of these reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that the deceased was not of sound mind, that eventough the allegations state that the deceased prepared another will in 1956 (12pages), the latter is not prevented from executing another will in 1960 (1page), and that inconsistencies in the testimonies of the witnesses prove their truthfulness.

ISSUE: Was the will in 1960 (1 page) duly/properly executed?

HELD: NO. Provision of Article 808 mandatory. Therefore, For all intents and purposes of the rules on probate, the testatrix was like a blind testator, and the due execution of her will would have required observance of Article 808. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate) , is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. Likewise, the 1970 will was done in Tagalog which the deceased is not well versed but in Spanish. This creates doubt as to the due execution of the will and as well as the typographical errors contain therein which show the haste in preparing the 1 page will as compared to the 12 page will created in 1956 written in Spanish. ALSO, as to the blindness, there was proof given by the testimony of the doctor that the deceased could not read at near distances because of cataracts. (Testatrixs vision was mainly for viewing distant objects and not for reading print.) Since there is no proof that it was read to the deceased twice, the will was NOT duly executed. ALSO, Consuelo should be removed as administrator because she is not expected to sue her own husband to reconvey the lands to the estate alleged to have been transferred by the deceased to her own husband. The notice of lis pendens is also not proper where the issue is not an action in rem, affecting real property or the title thereto.

Alvarado v. Gaviola226 SCRA 347 | JEN SUCCESSION REVIEWER

FACTS:On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will entitled Huling Habilin wherein he disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly revoked a previously executed holographic will at the time awaiting probate before the RTC of Laguna.According to Bayani Ma. Rino, private respondent, he was present when the said notarial will was executed, together with three instrumental witnesses and the notary public, where the testator did not read the will himself, suffering as he did from glaucoma. Rino, a lawyer, drafted the eight-page document and read the same aloud before the testator, the three instrumental witnesses and the notary public, the latter four following the reading with their own respective copies previously furnished them.Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado was executed changing some dispositions in the notarial will to generate cash for the testators eye operation.Said codicil was likewise not read by Brigido Alvarado and was read in the same manner as with the previously executed will.When the notarial will was submitted to the court for probate, Cesar Alvarado filed his opposition as he said that the will was not executed and attested as required by law; that the testator was insane or mentally incapacitated due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue pressure and influence on the part of the beneficiary; and that the signature of the testator was procured by fraud or trick.

ISSUE:W/N notarial will of Brigido Alvarado should be admitted to probate despite allegations of defects in the execution and attestation thereof as testator was allegedly blind at the time of execution and the double-reading requirement under Art. 808 of the NCC was not complied with.

HELD:YES. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testators will. Cesar Alvardo was correct in asserting that his father was not totally blind (of counting fingers at 3 feet) when the will and codicil were executed, but he can be so considered for purposes of Art. 808.That Art. 808 was not followed strictly is beyond cavil.However, in the case at bar, there was substantial compliance where the purpose of the law has been satisfied: that of making the provisions known to the testator who is blind or incapable of reading the will himself (as when he is illiterate) and enabling him to object if they do not accord with his wishes.Rino read the testators will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public.Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions.Only then did the signing and acknowledgment take place.There is no evidence that the contents of the will and the codicil were not sufficiently made known and communicated to the testator.With four persons, mostly known to the testator, following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will to himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes.Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testators will.Caneda v. CAFACTS:On December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence before 3 witnesses.He was assisted by his lawyer, Atty. Emilio Lumontad.In the will, it was declared that the testator was leaving by way of legacies and devises his real and personal properties to several people all of whom do not appear to be related to the testator.4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and testament, but numerous postponements pushed back the initial hearing of the probate court regarding the will.On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court.Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special administrator of the testators estate.Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second petition for intestate proceedings. They also opposed the probate of the testators will and the appointment of a special administrator for his estate.Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an order that the testate proceedings for the probate of the will had to be heard and resolved first.In the course of the proceedings, petitioners opposed to the allowance of the testators will on the ground that on the alleged date of its execution, the testator was already in poor state of health such that he could not have possibly executed the same. Also the genuineness of the signature of the testator is in doubt.On the other hand, one of the attesting witnesses and the notary public testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that the testator was in good health and was not unduly influenced in any way in the execution of his will.Probate court then rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero.CA affirmed the probate courts decision stating that it substantially complies with Article 805. Hence this appeal.

ISSUE:W/N the attestation clause in the will of the testator is fatally defective or can be cured under the art. 809.

HELD:No. It does not comply with the provisions of the law.Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged before a notary public by the testator and the attesting witnesses. The attestation clause need not be written in a language known to the testator or even to the attesting witnesses.It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses it gives affirmation to the fact that compliance with the essential formalities required by law has been observed.The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to insure the authenticity thereof.It is contended by petitioners that the attestation clause in the will failed to specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. And the Court agrees.The attestation clause does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other.The phrase, and he has signed the same and every page thereof, on the space provided for his signature and on the left hand margin, obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words as his last will and testament.Clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. That the absence of the statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be probated.Also, Art. 809 does not apply to the present case because the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. The defect in this case is not only with respect to the form or the language of the attestation clause. The defects must be remedied by intrinsic evidence supplied by the will itself which is clearly lacking in this case.Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be revived. Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or language of the will. This is because there is not substantial compliance with Article 805.