IV Solemnities of Wills

8/3/2019 IV Solemnities of Wills

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In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs.ANASTACIA ABANGAN ET AL., opponents-appellants.

1919 Nov 12 1st Division G.R.No. 13431 D E C I S I O N

AVANCEA, J .:

On September 19, 1917, the Court of First Instance of Cebu admitted to

probate Ana Abangan's will executed July, 1916. From this decision theopponents 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 atthe bottom by Martin Montalban (in the name and under the direction of thetestatrix) and by three witnesses. The following sheet contains only theattestation clause duly signed at the bottom by the three instrumentalwitnesses. Neither of these sheets is signed on the left margin by the testatrixand the three witnesses, nor numbered by letters; and these omissions,according to appellants' contention, are defects whereby the probate of thewill should have been denied. We are of the opinion that the will was dulyadmitted to probate.

In requiring that each and every sheet of the will should also be signed on theleft 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 itsobject (referring to the body of the will itself) to avoid the substitution of any ofsaid sheets, thereby changing the testator's dispositions. But when thesedispositions are wholly written on only one sheet signed at the bottom by thetestator and three witnesses (as the instant case), their signatures on the leftmargin of said sheet would be completely purposeless. In requiring thissignature on the margin, the statute took into consideration, undoubtedly, thecase of a will written on several sheets and must have referred to the sheetswhich the testator and the witnesses do not have to sign at the bottom. Adifferent interpretation would assume that the statute requires that this sheet,already signed at the bottom, be signed twice. We cannot attribute to thestatute such an intention. As these signatures must be written by the testatorand the witnesses in the presence of each other, it appears that, if thesignatures at the bottom of the sheet guaranties its authenticity, anothersignature on its left margin would be unnecessary; and if they do notguaranty, same signatures, affixed on another part of same sheet, would addnothing. We cannot assume that the statute regards of such importance theplace where the testator and the witnesses must sign on the sheet that itwould consider that their signatures written on the bottom do not guaranty theauthenticity of the sheet but, if repeated on the margin, give sufficientsecurity.

In requiring that each and every page of a will must be numberedcorrelatively in letters placed on the upper part of the sheet, it is likewiseclear that the object of Act No. 2645 is to know whether any sheet of the willhas been removed. But, when all the dispositive parts of a will are written .onone sheet only, the object of the statute disappears because the removal ofthis 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 ofthe testatrix and of the three witnesses on the margin and the numbering ofthe 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 isnot necessary in the attestation clause because this, as its name implies,appertains only to the witnesses and not to the testator since the latter doesnot attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets thefirst of which contains all the testamentary dispositions and is signed at thebottom 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, itis not necessary that both sheets be further signed on their margins by thetestator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is to close thedoor against bad faith and fraud, to avoid substitution of wills and testamentsand to guaranty their truth and authenticity. Therefore the laws on this subjectshould be interpreted in such a way as to attain these primordial ends. But,on the other hand, also one must not lose sight of the fact that it is not theobject 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 otherinterpretation whatsoever, that adds nothing but demands more requisites

entirely unnecessary, useless and frustrative of the testator's last will, mustbe disregarded.

As another ground for this appeal, it is alleged the records do not show thatthe testatrix knew the dialect in which the will is written. But the circumstanceappearing in the will itself that same was executed in the city of Cebu and inthe dialect of this locality where the testatrix was a neighbor is enough, in theabsence of any proof to the contrary, to presume that she knew this dialect inwhich this will is written.

For the foregoing considerations, the judgment appealed from is herebyaffirmed with costs against the appellants. So ordered.


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Arellano, C. J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,vs.JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal,Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court,

respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for havingadmitted to probate a will, which on its face is voidbecause it is written inEnglish, a language not known to the illiterate testatrix, and which is probablya forged willbecause she and the attesting witnesses did not appear beforethe notary as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in thecertiorari case in the Court of Appeals which reveal the following tangledstrands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (PhilippineScouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec.Proc. No. 7816). They were childless. They reared a boy named Agapito whoused the surname Suroza and who considered them as his parents as shownin 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 5years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner ofthe Federal Government. That explains why on her death she hadaccumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medicaltechnologist and went abroad. Agapito also became a soldier. He wasdisabled and his wife Nenita was appointed as his guardian in 1953 when hewas declared an incompetent in Special Proceeding No. 1807 of the Court ofFirst 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 laCruz 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, Recordof testate case).

Judge Bienvenido A. Tan dismissed the second guardianship proceedingand confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo ofCA case). Agapito has been staying in a veteran's hospital in San Franciscoor Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy andHermogena Talan begot a child named Marilyn Sy, who, when a few daysold, was entrusted to Arsenia de la Cruz (apparently a girl friend of Agapito)and who was later delivered to Marcelina Salvador Suroza who brought herup 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. Shestayed with Marcelina but was not legally adopted by Agapito. She marriedOscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparentlya neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973,

when she was 73 years old. That will which is in English was thumbmarkedby her. She was illiterate. Her letters in English to the VeteransAdministration were also thumbmarked by her (pp. 38-39, CA Rollo). In thatwig, Marcelina bequeathed all her estate to her supposed granddaughterMarilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in QuezonCity. 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 thatplace. She acquired the lot in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman ofMarcelina (P. 97, CA Rollo) and the executrix in her will (the alternateexecutrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband), filedwith the Court of First Instance of Rizal, Pasig Branch 25, a petition for theprobate of Marcelina's alleged will. The case was assigned to JudgeReynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerkof court, Evangeline S. Yuipco, to hear the evidence. The transcripts of thestenographic notes taken at the hearing before the deputy clerk of court arenot in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina asadministratrix. On the following day, April 1, Judge Honrado issued two


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orders directing the Merchants Banking Corporation and the Bank of Americato allow Marina to withdraw the sum of P10,000from the savings accounts ofMarcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, thecustodian 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'shouse, among whom was Nenita V. Suroza, and to place Marina in

possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding forthe settlement of Marcelina's estate. She and the other occupants of thedecedent's house filed on April 18 in the said proceeding a motion to setaside the order of April 11 ejecting them. They alleged that the decedent'sson Agapito was the sole heir of the deceased, that he has a daughternamed Lilia, that Nenita was Agapito's guardian and that Marilyn was notAgapito's daughter nor the decedent's granddaughter (pp. 52-68, Record oftestate case). Later, they questioned the probate court's jurisdiction to issuethe 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 23an order probating her supposed will wherein Marilyn was the institutedheiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set asideproceedings, admit opposition with counter-petition for administration andpreliminary injunction". Nenita in that motion reiterated her allegation thatMarilyn was a stranger to Marcelina, that the will was not duly executed andattested, that it was procured by means of undue influence employed byMarina and Marilyn and that the thumbmarks of the testatrix were procuredby fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because ofthe 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 thehousemaid 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 April18) 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 anda counter-petition for letters of administration. In that opposition, Nenita

assailed the due execution of the will and stated the names and addresses ofMarcelina'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 proceedingsadmitted that Marilyn was not Marcelina's granddaughter but was thedaughter of Agapito and Arsenia de la Cruz and that Agapito was notMarcelina's son but 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 reconsiderationof that order.

In a motion dated December 5, 1975, for the consolidation of all pendingincidents, Nenita V. Suroza reiterated her contention that the alleged will isvoid because Marcelina did not appear before the notary and because it iswritten 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), wasalso 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 theexecutrix had delivered the estate to Marilyn, and that the estate tax hadbeen paid, closed the testamentary proceeding.

About ten months later, in a verified complaint dated October 12, 1978, filedin this Court, Nenita charged Judge Honrado with having probated thefraudulent will of Marcelina. The complainant reiterated her contention thatthe testatrix was illiterate as shown by the fact that she affixed herthumbmark to the will and that she did not know English, the language inwhich 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 thetestatrix.)


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Nenita further alleged that Judge Honrado, in spite of his knowledge that thetestatrix had a son named Agapito (the testatrix's supposed sole compulsoryand legal heir), who was preterited in the will, did not take into account theconsequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado andinformed him that the testatrix did not know the executrix Marina Paje, thatthe 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 allowingMarina and her cohorts to withdraw from various banks the depositsMarcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for notgiving her access to the record of the probate case by alleging that it wasuseless for Nenita to oppose the probate since Judge Honrado would notchange 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 shepersist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with theallegations of the complaint. He merely pointed to the fact that Nenita did notappeal from the decree of probate and that in a motion dated July 6, 1976she asked for a thirty day period within which to vacate the house of thetestatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenitaand that the latter did not mention Evangeline in her letter dated September11, 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 testamentaryproceeding. 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 Nenitacould get a favorable decision. Evangeline also denied that she has anyknowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of thisCourt 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 datedOctober 7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against JudgeHonrado a petition for certiorari and prohibition wherein she prayed that thewill, the decree of probate and all the proceedings in the probate case bedeclared void.

Attached to the petition was the affidavit of Domingo P. Aquino, whonotarized the will. He swore that the testatrix and the three attestingwitnesses did not appear before him and that he notarized the will "just toaccommodate a brother lawyer on the condition" that said lawyer would bringto the notary the testatrix and the witnesses but the lawyer never compliedwith his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy wasan appeal and her failure to do so did not entitle her to resort to the specialcivil action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 amotion to dismiss the administrative case for having allegedly become mootand academic.

We hold that disciplinary action should be taken against respondent judge forhis improper disposition of the testate case which might have resulted in amiscarriage of justice because the decedent's legal heirs and not theinstituted heiress in the void win should have inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgmentor 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 firstinstance 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 showingthat the judicial acts complained of were corrupt or inspired by an intention toviolate the law, or were in persistent disregard of well-known legal rules" (Inre lmpeachment 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 theperformance of his duties that diligence, prudence and circumspection which


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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 waswritten 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 concludingparagraph, it was stated that the will was read to the testatrix "and translatedinto Filipino language". (p. 16, Record of testate case). That could only meanthat 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 theCivil Code that every will must be executed in a language or dialect known tothe testator. Thus, a will written in English, which was not known to the Igorottestator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause andnotarial acknowledgment where Marcelina Salvador Suroza is repeatedlyreferred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted notonly the anomaly as to the language of the will but also that there wassomething wrong in instituting the supposed granddaughter as sole heiressand giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk ofcourt, respondent judge could have noticed that the notary was not presentedas 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 couldhave ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to beinexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S.Suroza, a fine equivalent to his salary for one month is imposed onrespondent judge (his compulsory retirement falls on December 25, 1981).

The case against respondent Yuipco has become moot and academicbecause 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-CFINovember 21, 1980, 101 SCRA 225).

SO ORDERED.

Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.

Concepcion Jr., J., is on leave.

Abad Santos, J., took no part.

Matias vs. Salud, 104 Phil 1046Not available

In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIOGARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents.1951 Nov 29 En Banc G.R. No. L-4067 D E C I S I O N

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the willof Antero Mercado dated January 3, 1943. The will is written in the Ilocanodialect and contains the following attestation clause:

"We, the undersigned, by these presents do declare that the foregoing

testament of Antero Mercado was signed by himself and also by us below hisname and of this attestation clause and that of the left margin of the threepages thereof. Page three the continuation of this attestation clause; this willis written in Ilocano dialect which is spoken and understood by the testator,and it bears the corresponding number in letter which compose of threepages and all of them were signed in the presence of the testator andwitnesses, and the witnesses in the presence of the testator and all and eachand every one of us witnesses.

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

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


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(Sgd.) BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrotethe name of Antero Mercado, followed below by "A ruego del testador" andthe name of Florentino Javier. Antero Mercado is alleged to have written across immediately after his name. The Court of Appeals, reversing the

judgment of the Court of First Instance of Ilocos Norte, ruled that theattestation clause failed (1) to certify that the will was signed on all the leftmargins of the three pages and at the end of the will by Atty. FlorentinoJavier at the express request of the testator in the presence of the testatorand each and every one of the witnesses; (2) to certify that after the signingof the name of the testator by Atty. Javier at the former's request said testatorhas written a cross at the end of his name and on the left margin of the threepages of which the will consists and at the end thereof; (3) to certify that thethree witnesses signed the will in all the pages thereon in the presence of thetestator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state thatAntero Mercado caused Atty. Florentino Javier to write the testator's nameunder his express direction, as required by section 618 of the Code of CivilProcedure. The herein petitioner (who is appealing by way of certiorari fromthe decision of the Court of Appeals) argues, however, that there is no needfor such recital because the cross written by the testator after his name is asufficient signature and the signature of Atty. Florentino Javier is asurplusage. Petitioner's theory is that the cross is as much a signature as athumbmark, the latter having been held sufficient by this Court in the cases ofDe 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 andLopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usualsignature of Antero Mercado or even one of the ways by which he signed hisname. After mature reflection, we are not prepared to liken the mere sign of across to a thumbmark, and the reason is obvious. The cross cannot and doesnot have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine whether thereis a sufficient recital in the attestation clause as to the signing of the will bythe testator in the presence of the witnesses, and by the latter in thepresence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with costs against thepetitioner. So ordered.

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

concur.

G.R. No. L-15153 August 31, 1960

In the Matter of the summary settlement of the Estate of the deceasedANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,vs.EUSEBIA ABELLANA, et al., oppositors-appellants.

T. de los Santos for appellee.Climaco and Climaco for appellants.

LABARADOR, J.:

Appeal from a decision of the Court of First Instance of Zamboanga Cityadmitting to probate the will of one Anacleta Abellana. The case wasoriginally appealed to the Court of Appeals where the following assignment oferror is made:

The appellants respectfully submit that the Trial Court erred inholding that the supposed testament, Exh. "A", was signed inaccordance with law; and in admitting the will to probate.

In view of the fact that the appeal involves a question of law the said courthas certified the case to us.

The facts as found by the trial court are as follows:

It appears on record that the last Will and Testament (Exhibit "A"),which is sought to be probated, is written in the Spanish languageand consists of two (2) typewritten pages (pages 4 and 5 of the

record) double space. The first page is signed by Juan Bello andunder his name appears typewritten "Por la testadora Anacleta

Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudadde Zamboanga', and on the second page appears the signature ofthree (3) instrumental witnesses Blas Sebastian, Faustino Macasoand Rafael Ignacio, at the bottom of which appears the signature ofT. de los Santos and below his signature is his official designation asthe notary public who notarized the said testament. On the first pageon the left margin of the said instrument also appear the signaturesof the instrumental witnesses. On the second page, which is the lastpage of said last Will and Testament, also appears the signature ofthe three (3) instrumental witnesses and on that second page on the

left margin appears the signature of Juan Bello under whose nameappears handwritten the following phrase, "Por la Testadora


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Anacleta Abellana'. The will is duly acknowledged before NotaryPublic Attorney Timoteo de los Santos. (Emphasis supplied)

The appeal squarely presents the following issue: Does the signature of Dr.Juan A. Abello above the typewritten statement "Por la Testadora AnacletaAbellana . . ., Ciudad de Zamboanga," comply with the requirements of lawprescribing the manner in which a will shall be executed?

The present law, Article 805 of the Civil Code, in part provides as follows:

Every will, other than a holographic will, must be subscribedat theend thereof by the testator himself orby the testator's name writtenby some other person in his presence, and by his express direction,and attested and subscribed by three or more credible witness in thepresence of the testator and of one another. (Emphasis supplied.)

The clause "must be subscribed at the end thereof by the testator himself orby the testator's name written by some other person in his presence and byhis express direction," is practically the same as the provisions of Section618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

No will, except as provided in the preceding section shall be valid topass any estate, real or personal, nor charge or affect the same,unless it be in writing and signed by the testator, or by the testator'sname written by some other person in his presence, and by hisexpress direction, and attested and subscribed by three or morecredible witnesses in the presence of the testator and of each other. .. . (Emphasis supplied).

Note that the old law as well as the new require that the testator himself signthe will, or if he cannot do so, the testator's name must be written by some

other person in his presence and by his express direction. Applying thisprovision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,700:

It will be noticed from the above-quoted section 618 of the Code ofCivil Procedure that where the testator does not know how, or isunable, to sign, it will not be sufficient that one of the attestingwitnesses signs the will at the testator's request, the notary certifyingthereto as provided in Article 695 of the Civil Code, which, in thisrespect, was modified by section 618 above referred to, but it isnecessary that the testator's name be written by the person signingin his stead in the place where he could have signed if he knew how

or was able to do so, and this in the testator's presence and by hisexpress direction; so that a will signed in a manner different than that

prescribed by law shall not be valid and will not be allowed to beprobated.

Where a testator does not know how, or is unable for any reason, tosign the will himself, it shall be signed in the following manner:

John Doe by the testator, Richard Doe; or in this form: "By thetestator, John Doe, Richard Doe." All this must be written by the

witness signing at the request of the testator.

Therefore, under the law now in force, the witness Naval A. Vidalshould have written at the bottom of the will the full name of thetestator and his own name in one forms given above. He did not doso, however, and this is failure to comply with the law is a substantialdefect which affects the validity of the will and precludes itsallowance, notwithstanding the fact that no one appeared to opposeit.

The same ruling was laid down in the case ofCuison vs. Concepcion, 5 Phil.,552. In the case ofBarut vs. Cabacungan, 21 Phil., 461, we held that the

important thing is that it clearly appears that the name of the testatrix wassigned at her express direction; it is unimportant whether the person whowrites the name of the testatrix signs his own or not. Cases of the sameimport areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).

In the case at bar the name of the testatrix, Anacleta Abellana, does notappear written under the will by said Abellana herself, or by Dr. Juan Abello.There is, therefore, a failure to comply with the express requirement in thelaw that the testator must himself sign the will, or that his name be affixedthereto by some other person in his presence and by his express direction.

It appearing that the above provision of the law has not been complied with,we are constrained to declare that the said will of the deceased AnacletaAbellana may not be admitted to probate.

WHEREFORE, the decision appealed from is hereby set aside and thepetition for the probate of the will denied. With costs against petitioner.

Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L., Barrera, GutierrezDavid and Dizon, JJ., concur.

Nera v Rimando, 18 Phil 450Not available


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G.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILLOF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance ofSouthern 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 Instanceof 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, themotion for reconsideration and the motion for appointment of a specialadministrator.

In the petition for probate filed with the respondent court, the petitionerattached the alleged last will and testament of the late Dorotea Perez. Writtenin the Cebuano-Visayan dialect, the will consists of two pages. The first pagecontains the entire testamentary dispositions and is signed at the end orbottom of the page by the testatrix alone and at the left hand margin by thethree (3) instrumental witnesses. The second page which contains theattestation clause and the acknowledgment is signed at the end of the

attestation clause by the three (3) attesting witnesses and at the left handmargin by the testatrix.

Since no opposition was filed after the petitioner's compliance with therequirement of publication, the trial court commissioned the branch clerk ofcourt to receive the petitioner's evidence. Accordingly, the petitionersubmitted his evidence and presented Vicente Timkang, one of thesubscribing witnesses to the will, who testified on its genuineness and dueexecution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued thequestioned 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 alsorequired to submit the names of the intestate heirs with their corresponding

addresses so that they could be properly notified and could intervene in thesummary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed amanifestation and/or motion, ex parte praying for a thirty-day period withinwhich to deliberate on any step to be taken as a result of the disallowance ofthe will. He also asked that the ten-day period required by the court to submitthe names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying theprobate of the will. However, the motion together with the previousmanifestation and/or motion could not be acted upon by the HonorableRamon C. Pamatian due to his transfer to his new station at Pasig, Rizal. Thesaid motions or incidents were still pending resolution when respondentJudge Avelino S. Rosal assumed the position of presiding judge of therespondent court.

Meanwhile, the petitioner filed a motion for the appointment of specialadministrator.

Subsequently, the new Judge denied the motion for reconsideration as wellas the manifestation and/or motion filed ex parte. In the same order of denial,the motion for the appointment of special administrator was likewise deniedbecause of the petitioner's failure to comply with the order requiring him tosubmit 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 Coderequire that the testatrix and all the three instrumental and attestingwitnesses sign at the endof 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 subscribedat the end thereof by the testator himself or by the testator'sname written by some other person in his presence, and byhis express direction, and attested and subscribed by threeor more credible witnesses in the presence of the testatorand of one another.

The testator or the person requested by him to write his

name and the instrumental witnesses of the will, shall alsosign, as aforesaid, each and every page thereof, except the


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last, on the left margin, and all the pages shall be numberedcorrelatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used uponwhich the will is written, and the fact that the testator signedthe will and every page thereof, or caused some otherperson to write his name, under his express direction, in thepresence of the instrumental witnesses, and that the lacier

witnesses and signed the will and the pages thereof in thepresence of the testator and of one another.

If the attestation clause is in a language not known to thewitnesses, it shall be interpreted to the witnesses, it shall beinterpreted to them.

The respondent Judge interprets the above-quoted provision of law to requirethat, for a notarial will to be valid, it is not enough that only the testatrix signsat the "end" but an the three subscribing witnesses must also sign at thesame place orat the end, in the presence of the testatrix and of one anotherbecause 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 thepage, 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 Codedoes not make it a condition precedent or a matter of absolute necessity forthe extrinsic validity of the wig that the signatures of the subscribingwitnesses should be specifically located at the end of the wig after thesignature of the testatrix. He contends that it would be absurd that thelegislature intended to place so heavy an import on the space or particularlocation where the signatures are to be found as long as this space orparticular location wherein the signatures are found is consistent with goodfaith and the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribedor signed at its end by the testator himself or by the testator's name writtenby another person in his presence, and by his express direction, and attestedand subscribed by three or more credible witnesses in the presence of thetestator and of one another.

It must be noted that the law uses the terms attestedand subscribedAttestation 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 statuterequires 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 paperas the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d911).

Insofar as the requirement of subscription is concerned, it is our consideredview that the will in this case was subscribed in a manner which fully satisfiesthe purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the firstpage of the will attested not only to the genuineness of the signature of thetestatrix but also the due execution of the will as embodied in the attestationclause.

While perfection in the drafting of a will may be desirable, unsubstantialdeparture from the usual forms should be ignored, especially where theauthenticity 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 consistsin the liberalization of the manner of their execution with the end in view ofgiving the testator more freedom in expressing his last wishes but withsufficient safeguards and restrictions to prevent the commission of fraud andthe exercise of undue and improper pressure and influence upon the testator.This objective is in accord with the modern tendency in respect to theformalities in the execution of a will" (Report of the Code commission, p.103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned orderthat were not for the defect in the place of signatures of the witnesses, hewould have found the testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied inthe present case when the instrumental witnesses signed at the left margin ofthe sole page which contains all the testamentary dispositions, especially sowhen the will was properly Identified by subscribing witness Vicente Timkangto be the same will executed by the testatrix. There was no question of fraudor substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clausefailed to state the number of pages used in writing the will. This would havebeen 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 pagesduly signed by the testatrix and her instrumental witnesses. As earlier stated,


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the first page which contains the entirety of the testamentary dispositions issigned by the testatrix at the end or at the bottom while the instrumentalwitnesses signed at the left margin. The other page which is marked as"Pagina dos" comprises the attestation clause and the acknowledgment. Theacknowledgment itself states that "This Last Will and Testament consists oftwo 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 theattestation clause must state the number of pages used:

The law referred to is article 618 of the Code of CivilProcedure, as amended by Act No. 2645, which requires thatthe attestation clause shall state the number of pages orsheets upon which the win is written, which requirement hasbeen held to be mandatory as an effective safeguard againstthe possibility of interpolation or omission of some of thepages of the will to the prejudice of the heirs to whom theproperty 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, 54Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratiodecidendiof these cases seems to be that the attestationclause must contain a statement of the number of sheets orpages composing the will and that if this is missing or isomitted, it will have the effect of invalidating the will if thedeficiency cannot be supplied, not by evidence aliunde, butby a consideration or examination of the will itself. But herethe situation is different. While the attestation clause doesnot state the number of sheets or pages upon which the willis written, however, the last part of the body of the willcontains a statement that it is composed of eight pages,

which circumstance in our opinion takes this case out of therigid rule of construction and places it within the realm ofsimilar cases where a broad and more liberal view has beenadopted to prevent the will of the testator from beingdefeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling whichapplies a similar liberal approach:

... Impossibility of substitution of this page is assured notonly (sic) the fact that the testatrix and two other witnessesdid sign the defective page, but also by its bearing the

coincident imprint of the seal of the notary public beforewhom the testament was ratified by testatrix and all three

witnesses. The law should not be so strictly and literallyinterpreted as to penalize the testatrix on account of theinadvertence of a single witness over whose conduct shehad no control where the purpose of the law to guarantee theIdentity of the testament and its component pages issufficiently attained, no intentional or deliberate deviationexisted, and the evidence on record attests to the funobservance of the statutory requisites. Otherwise, as statedin Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479(decision on reconsideration) 'witnesses may sabotage thewill by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of therespondent court which denied the probate of tile will, the motion forreconsideration of the denial of probate, and the motion for appointment of aspecial administrator are set aside. The respondent court is ordered to allowthe probate of the wig and to conduct further proceedings in accordance withthis decision. No pronouncement on costs.

SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ.,concur.

Teehankee, J, is on leave.

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFAVILLACORTA. CELSO ICASIANO, petitioner-appellee, vs. NATIVIDADICASIANO and ENRIQUE ICASIANO, oppositors-appellants.1964 Jun 30 En Banc G.R. No. L-18979 D E C I S I O N

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting toprobate the document and its duplicate, marked as Exhibits "A" and "A-1", asthe true last will and testament of Josefa Villacorte, deceased, and appointingas executor Celso Icasiano, the person named therein as such.This special proceeding was begun on October 2, 1958 by a petition for theallowance and admission to probate of the original, Exhibit "A" as the allegedwill of Josefa Villacorte, deceased, and for the appointment of petitionerCelso Icasiano as executor thereof.The court set the proving of the alleged will for November 8, 1958, andcaused notice thereof to be published for three (3) successive weeks,


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previous to the time appointed, in the newspaper "Manila Chronicle", andalso caused personal service of copies thereof upon the known heirs.On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed heropposition; and on November 10, 1958, she petitioned to have herselfappointed as a special administrator, to which proponent objected. Hence, onNovember 18, 1958, the court issued an order appointing the Philippine TrustCompany as special administrator.On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed amanifestation adopting as his own Natividad's opposition to the probate ofthe alleged will.On March 19, 1959, the petitioner proponent commenced the introduction ofhis evidence; but on June 1, 1959, he filed a motion for the admission of anamended and supplemental petition, alleging that the decedent left a willexecuted in duplicate with all the legal requirements, and that he was, on thatdate, submitting the signed duplicate (Exhibit "A-1"), which he allegedly foundonly on or about May 26, 1959. On June 17, 1959, oppositors NatividadIcasiano de Gomez and Enrique Icasiano filed their joint opposition to theadmission of the amended and supplemental petition, but by order of July 20,1959, the court admitted said petition; and on July 30, 1959, oppositorNatividad Icasiano filed her amended opposition. Thereafter, the partiespresented their respective evidence, and after several hearings the courtissued the order admitting the will and its duplicate to probate. From thisorder, the oppositors appealed directly to this Court, the amount involvedbeing over P200,000.00, on the ground that the same is contrary to law andthe evidence.The evidence presented for the petitioner is to the effect that JosefaVillacorte 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 induplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro GuevaraStreet, Manila, published before and attested by three instrumentalwitnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad, andDr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by thesaid three instrumental witnesses on the same date before attorney Jose

Oyengco Ong, Notary Public in and for the City of Manila; and that the willwas actually prepared by attorney Fermin Samson, who was also presentduring the execution and signing of the decedent's last will and testament,together with former Governor Emilio Rustia of Bulacan, Judge RamonIcasiano, and a little girl. Of the said three instrumental witnesses to theexecution of the decedent's last will and testament attorneys Torres andNatividad were in the Philippines at the time of the hearing, and both testifiedas to the due execution and authenticity of the said will. So did the NotaryPublic before whom the will was acknowledged by the testatrix and attestingwitnesses, and also attorney Fermin Samson, who actually prepared thedocument. The latter also testified upon cross examination that he preparedone original and two copies of Josefa Villacorte's last will and testament at

his house in Baliuag, Bulacan, but he brought only one original and onesigned copy to Manila, retaining one unsigned copy in Bulacan.The records show that the original of the will, which was surrenderedsimultaneously 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 doesnot contain the signature of one of the attesting witnesses, Atty. Jose V.Natividad, on page three (3) thereof; but the duplicate copy attached to theamended and supplemental petition and marked as Exhibit "A-1" is signed bythe testatrix and her three attesting witnesses in each and every page.The testimony presented by the proponents of the will tends to show that theoriginal of the will and its duplicate were subscribed at the end and on the leftmargin of each and every page thereof by the testatrix herself and attestedand subscribed by the three mentioned witnesses in the testatrix's presenceand in that of one another as witnesses (except for the missing signature ofattorney Natividad on page three (3) of the original; that pages of the originaland duplicate of said will were duly numbered; that the attestation clausethereof contains all the facts required by law to be recited therein and issigned by the aforesaid attesting witnesses; that the will is written in thelanguage known to and spoken by the testatrix; that the attestation clause isin a language also known to and spoken by the witnesses; that the will wasexecuted on one single occasion in duplicate copies; and that both theoriginal and the duplicate copy were duly acknowledged before Notary PublicJose Oyengco Ong of Manila on the same date June 2, 1956.Witness Natividad, who testified on his failure to sign page three (3) of theoriginal, admits that he may have lifted two pages instead of one when hesigned the same, but affirmed that page three (3) was signed in his presence.Oppositors-appellants in turn introduced expert testimony to the effect thatthe 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, andfurther aver that granting that the documents were genuine, they wereexecuted through mistake and with undue influence and pressure becausethe testatrix was deceived into adopting as her last will and testament thewishes of those who will stand to benefit from the provisions of the will, as

may be inferred from the facts and circumstances surrounding the executionof the will and the provisions and dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as attorneys- in-fact ofthe deceased and not enumerated or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not mentioned in thewill, and not to oppose the probate of it, on penalty of forfeiting their share inthe portion of free disposal.We have examined the record and are satisfied, as the trial court was, thatthe testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",respectively) of the will spontaneously, on the same occasion, in thepresence of the three attesting witnesses, the notary public whoacknowledged the will, and Atty. Samson, who actually prepared the

documents; that the will and its duplicate were executed in Tagalog, a


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language known to and spoken by both the testator and the witnesses, andread to and by the testatrix and Atty. Fermin Samson together before theywere actually signed; that the attestation clause is also in a language knownto and spoken by the testatrix and the witnesses. The opinion of expert foroppositors, Mr. Felipe Logan, that the signatures of the testatrix appealing inthe duplicate original were not written by the same hand, which wrote thesignatures in the original will leaves us unconvinced, not merely because it isdirectly contradicted by expert Martin Ramos for the proponents, butprincipally because of the paucity of the standards used by him to support theconclusion that the differences between the standard and questionedsignatures are beyond the writer's range of normal scriptural variation. Theexpert has, in fact, used as standards only three other signatures of thetestatrix besides those affixed to the original of the testament (Exh. A); andwe feel that with so few standards the expert's opinion that the signatures inthe duplicate could not be those of the testatrix becomes extremelyhazardous. This is particularly so since the comparison charts Nos. 3 and 4fail to show convincingly that there are radical differences that would justifythe charge of forgery, taking into account the advanced age of the testatrix,the evident variability of her signatures, and the effect of writing fatigue, theduplicate being signed right after the original. These factors were notdiscussed by the expert.Similarly, the alleged slight variance in blueness of the ink in the admittedand questioned signatures does not appear reliable, considering thatstandard and challenged writings were affixed to different kinds of paper, withdifferent surfaces and reflecting power. On the whole, therefore, we do notfind the testimony of the oppositor's expert sufficient to overcome that of thenotary 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 thatsome 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. Coronel, 45 Phil.216). 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 theyshould respect the distribution made in the will, under penalty of forfeiture oftheir 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, asshown by ordinary experience, often results in a sizeable portion of the estatebeing diverted into the hands of non- heirs and speculators. Whether theseclauses are valid or not is a matter to be litigated on another occasion. It isalso 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 repugnantand exclude each other; their joining as grounds for opposing probate showsabsence 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 denialof probate. Impossibility of substitution of this page is assured not only thefact that the testatrix and two other witnesses did sign the defective page, butalso by its bearing the coincident imprint of the seal of the notary publicbefore whom the testament was ratified by testatrix and all three witnesses.The law should not be so strictly and literally interpreted as to penalize thetestatrix on account of the inadvertence of a single witness over whoseconduct she had no control, where the purpose of the law to guarantee theidentity of the testament and its component pages is sufficiently attained, nointentional or deliberate deviation existed, and the evidence on record atteststo the full observance of the statutory requisites. Otherwise, as stated in Vda.de Gil vs. Murciano, 88 Phil. 260; 49 Off. Gaz. 1459, at 1479 (decision onreconsideration) "witnesses may sabotage the will by muddling or bungling itor the attestation clause".That the failure of witness Natividad to sign page three (3) was entirelythrough pure oversight is shown by his own testimony as well as by theduplicate copy of the will, which bears a complete set of signatures in everypage. The text of the attestation clause and the acknowledgment before theNotary Public likewise evidence that no one was aware of the defect at thetime.This would not be the first time that this Court departs from a strict and literalapplication of the statutory requirements, where the purposes of the law areotherwise satisfied. Thus, despite the literal tenor of the law, this Court hasheld that a testament, with the only page signed at its foot by testator andwitnesses, but not in the left margin, could nevertheless be probated(Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement forthe correlative lettering of the pages of a will, the failure to mark the first pageeither 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 ofthe legal requirements in order to guard against fraud and bad faith butwithout undue or unnecessary curtailment of the testamentary privilege.The appellants also argue that since the original of the will is in existence andavailable, the duplicate (Exh. A-1) is not entitled to probate. Since they

opposed probate of the original because it lacked one signature in its thirdpage, it is easily discerned that oppositors-appellants run here into adilemma: if the original is defective and invalid, then in law there is no otherwill but the duly signed carbon duplicate (Exh. A-1), and the same isprobatable. If the original is valid and can be probated, then the objection tothe signed duplicate need not be considered, being superfluous andirrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that theomission of one signature in the third page of the original testament wasinadvertent and not intentional.That the carbon duplicate, Exhibit A-1, was produced and admitted without anew publication does not affect the jurisdiction of the probate court, alreadyconferred by the original publication of the petition for probate. The amended

petition did not substantially alter the one first filed, but merely supplemented


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it by disclosing the existence of the duplicate, and no showing is made thatnew interests were involved (the contents of Exhibit A and A-1 are admittedlyidentical); and appellants were duly notified of the proposed amendment. It isnowhere proved or claimed that the amendment deprived the appellants ofany substantial right, and we see no error in admitting the amended petition.IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, withcosts against appellants.Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes,Regala, and Makalintal, JJ., concur.Barrera and Dizon, JJ., took no part.

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET AL., oppositors-appellants.1953 Apr 29 En Banc G.R. No. L-5826 D E C I S I O N

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of the Court ofFirst Instance of Samar, admitting to probate the will allegedly executed byVicente Cagro who died in Laoangan, Pambujan, Samar, on February 14,1949.

The main objection insisted upon by the appellants is that the will is fatallydefective, because its attestation clause is not signed by the attestingwitnesses. There is no question that the signatures of the three witnesses tothe will do not appear at the bottom of the attestation clause, although thepage 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. Theattestation clause is "a memorandum of the facts attending the execution ofthe will" required by law to be made by the attesting witnesses, and it mustnecessarily bear their signatures. An unsigned attestation clause cannot beconsidered as an act of the witnesses, since the omission of their signaturesat the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesseson the left-hand margin conform substantially to the law and may be deemedas their signatures to the attestation clause. This is untenable, because saidsignatures are in compliance with the legal mandate that the will be signedon the left-hand margin of all its pages. If an attestation clause not signed bythe three witnesses at the bottom thereof, be admitted as sufficient, it wouldbe easy to add such clause to a will on a subsequent occasion and in theabsence of the testator and any or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of the will inquestion 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 withthe formalities of the law and, therefore, should be admitted to probate. Itappears that the will was signed by the testator and was attested by threeinstrumental witnesses, not only at the bottom, but also on the left-handmargin. The witnesses testified not only that the will was signed by thetestator in their presence and in the presence of each other but also thatwhen they did so, the attestation clause was already written thereon. Theirtestimony has not been contradicted. The only objection set up by theoppositors to the validity of the will is the fact that the signatures of theinstrumental witnesses do not appear immediately after the attestationclause.

This objection is too technical to be entertained. In the case of Abangan vs.Abangan, (40 Phil., 476), this court said that when the testamentarydispositions "are wholly written on only one sheet signed at the bottom by thetestator and three witnesses (as the instant case), their signatures on the leftmargin of said sheet would be completely purposeless." In such a case, thecourt said, the requirement of the signatures on the left hand margin was notnecessary because the purpose of the law - which is to avoid the substitutionof any of the sheets of the will, thereby changing the testator's dispositions -has already been accomplished. We may say the same thing in connectionwith the will under consideration because while the three instrumentalwitnesses did not sign immediately after the attestation clause, the fearentertained by the majority that it may have been only added on a

subsequent occasion and not at the signing of the will, has been obviated bythe uncontradicted testimony of said witnesses to the effect that suchattestation clause was already written in the will when the same was signed.

The following observation made by this court in the Abangan case is veryfitting:

"The object of the solemnities surrounding the execution of wills is to closethe door against bad faith and fraud, to avoid substitution of wills andtestaments and to guaranty their truth and authenticity. Therefore the laws onthis subject should be interpreted in such a way as to attain these primordialends. 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


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make a will. So when an interpretation already given assures such ends, anyother interpretation whatsoever, that adds nothing but demands morerequisites entirely unnecessary, useless and frustrative of the testator's lastwill, must be disregarded."(supra)

We should not also overlook the liberal trend of the New Civil Code in thematter of interpretation of wills, the purpose of which, in case of doubt, is togive such interpretation that would have the effect of preventing intestacy(articles 788 and 791, New Civil Code).

I am therefore of the opinion that the will in question should be admitted toprobate.

Feria, J., concurs.

TUASON, J., dissenting:

I concur in Mr. Justice Bautista's dissenting opinion and may add that themajority decision erroneously sets down as a fact that the attestation clausewas not signed, when the witnesses' signatures appear on the left marginand the real and only question is whether such signatures are legallysufficient.

The only answer, in our humble opinion, is yes. The law on wills does notprovide that the attesting witness should sign the clause at the bottom. In theabsence of such provision, there is no reason why signatures on the marginare not good. A letter is not any the less the writer's simply because it wassigned, not at the conventional place but on the side or on top.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,vs.HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA,J.:

Petition to review on certiorarithe judgment of the Court First Instance ofCebu allowing the probate of the last will a testament of the late Valente Z.Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the saiddecease opposed the allowance of the will (Exhibit "E"), alleging the will wasexecuted through fraud, deceit, misrepresentation and undue influence; thatthe said instrument was execute without the testator having been fullyinformed of the content thereof, particularly as to what properties he wasdisposing and that the supposed last will and testament was not executed inaccordance with law. Notwithstanding her objection, the Court allowed theprobate of the said last will and testament Hence this appeal by certiorariwhich was given due course.

The only question presented for determination, on which the decision of thecase hinges, is whether the supposed last will and testament of Valente Z.Cruz (Exhibit "E") was executed in accordance with law, particularly Articles805 and 806 of the new Civil Code, the first requiring at least three crediblewitnesses to attest and subscribe to the will, and the second requiring thetestator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas

Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of them, the lastnamed, is at the same time the Notary Public before whom the will wassupposed to have been acknowledged. Reduced to simpler terms, thequestion was attested and subscribed by at least three credible witnesses inthe presence of the testator and of each other, considering that the threeattesting witnesses must appear before the notary public to acknowledge thesame. As the third witness is the notary public himself, petitioner argues thatthe result is that only two witnesses appeared before the notary public toacknowledge the will. On the other hand, private respondent-appellee,Manuel B. Lugay, who is the supposed executor of the will, following thereasoning of the trial court, maintains that there is substantial compliancewith the legal requirement of having at least three attesting witnesses even if

the notary public acted as one of them, bolstering up his stand with 57American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a willas against the purely technical reason that one of thewitnesses required by law signed as certifying to anacknowledgment of the testator's signature under oath ratherthan as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We areinclined to sustain that of the appellant that the last will and testament inquestion was not executed in accordance with law. The notary public before

whom the will was acknowledged cannot be considered as the thirdinstrumental witness since he cannot acknowledge before himself his having


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signed the will. To acknowledge before means to avow (Javellana v.Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own asgenuine, to assent, to admit; and "before" means in front or preceding inspace or ahead of. (The New Webster Encyclopedic Dictionary of the EnglishLanguage, p. 72; Funk & Wagnalls New Standard Dictionary of the EnglishLanguage, p. 252; Webster's New International Dictionary 2d. p. 245.)Consequently, if the third witness were the notary public himself, he wouldhave 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 thatone will appear before the other to acknowledge his participation in themaking of the will. To permit such a situation to obtain would be sanctioning asheer absurdity.

Furthermore, the function of a notary public is, among others, to guardagainst any illegal or immoral arrangement Balinon v. De Leon, 50 0. G.583.) That function would defeated if the notary public were one of theattesting instrumental witnesses. For them he would be interested sustainingthe validity of the will as it directly involves him and the validity of his own act.It would place him in inconsistent position and the very purpose ofacknowledgment, which is to minimize fraud (Report of Code Commission p.106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, inaddition, act as a witness to the executive of the document he has notarized.(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43Ill. 130). There are others holding that his signing merely as notary in a willnonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E.2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W.Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). Butthese authorities do not serve the purpose of the law in this jurisdiction or arenot decisive of the issue herein because the notaries public and witnesses

referred to aforecited cases merely acted as instrumental, subscribingattesting witnesses, and not as acknowledgingwitnesses. He the notarypublic acted not only as attesting witness but also acknowledging witness, asituation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notarypublic by the testator and the witnesses. The notary publicshall not be required to retain a copy of the will or file anotherwith the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting andacknowledging witnesses, would have the effect of having only two attesting

witnesses to the will which would be in contravention of the provisions ofArticle 80 be requiring at least three credible witnesses to act as such and of

Article 806 which requires that the testator and the required number ofwitnesses must appear before the notary public to acknowledge the will. Theresult would be, as has been said, that only two witnesses appeared beforethe notary public for or that purpose. In the circumstances, the law would notbe duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is herebyreversed and the probate of the last will and testament of Valente Z. Cruz

(Exhibit "E") is declared not valid and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muoz Palma, JJ.,concur.

G.R. No. L-51546 January 28, 1980

JOSE ANTONIO GABUCAN, petitioner-appellant,vs.HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA andNELDA G. ENCLONAR, respondents-appellees.

Ignacio A. Calingin for appellant.

AQUINO, J.:

This case is about the dismissal of a petition for the probate of a notarial willon the ground that it does not bear a thirty-centavo documentary stamp.

The Court of First Instance of Camiguin in its "decision" of December 28,1977 in Special Proceeding No. 41 for the probate of the will of the lateRogaciano Gabucan, dismissed the proceeding (erroneously characterizesas an "action")

The proceeding was dismissed because the requisite documentary stampwas not affixed to the notarial acknowledgment in the will and, hence,according to respondent Judge, it was not admissible in evidence, citingsection 238 of the Tax Code, now section 250 of the 1977 Tax Code, whichreads:

SEC. 238. Effect of failure to stamp taxable document. An instrument, document, or paper which is required by law to


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be stamped and which has been signed, issued, accepted,or transferred without being duly stamped, shall not berecorded, nor shall it or any copy thereof or any record oftransfer of the same be admitted or used in evidence in anycourt until the requisite stamp or stamps shall have beenaffixed thereto and cancelled.

No notary public or other officer authorized to administer

oaths shall add his jurat or acknowledgment to anydocument subject to documentary stamp tax unless theproper documentary stamps are affixed thereto andcancelled.

The probate court assumed that the notarial acknowledgment of the said willis subject to the thirty-centavo documentary stamp tax fixed in section 225 ofthe Tax Code, now section 237 of the 1977 Tax Code.

Respondent Judge refused to reconsider the dismissal in spite of petitioner'smanifestation that he had already attached the documentary stamp to theoriginal of the will. (See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17

SCRA 482, 486.)

The case was brought to this Court by means of a petition for mandamus tocompel the lower court to allow petitioner's appeal from its decision. In thisCourt's resolution of January 21, 1980 the petition for mandamus was treatedin the interest of substantial and speedy justice as an appeal under RepublicAct No. 5440 as well as a special civil action of certiorari under Rule 65 of theRules of Court.

We hold that the lower court manifestly erred in declaring that, because nodocumentary stamp was affixed to the will, there was "no will and testamentto probate" and, consequently, the alleged "action must of necessity be

dismissed".

What the probate court should have done was to require the petitioner orproponent to affix the requisite thirty-centavo documentary stamp to thenotarial acknowledgment of the will which is the taxable portion of thatdocument.

That procedure may be implied from the provision of section 238 that thenon-admissibility of the document, which does not bear the requisitedocumentary stamp, subsists only "until the requisite stamp or stamps shallhave been affixed thereto and cancelled."

Thus, it was held that the documentary stamp may be affixed at the time thetaxable document is presented in evidence (Del Castillo vs. Madrilena 49Phil. 749). If the promissory note does not bear a documentary stamp, thecourt should have allowed plaintiff's tender of a stamp to supply thedeficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the holding inAzarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stampon a document does not invalidate such document. See Cia. General deTabacos vs. Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa vs.Amenabar 16 Phil. 403, 405-6.)

WHEREFORE, the lower court's dismissal of the petition for probate isreversed and set aside. It is directed to decide the case on the merits in thelight of the parties' evidence. No costs.

SO ORDERED.

Barredo, Antonio, Concepcion, Jr., and Abad Santos, JJ. concur.

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA,petitioner-appellee, vs. DOA MATEA LEDESMA, oppositor-appellant.

1955 June 30 1st Division G.R. No. L-7179 D E C I S I O N

REYES, J.B.L., J.:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted toprobate the documents in the Visayan dialect, marked Exhibits D and E, asthe testament and codicil duly executed by the deceased Da. ApolinariaLedesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and VicenteYap as witnesses. The contestant, Da. Matea Ledesma, sister and nearestsurviving relative of said deceased, appealed from the decision, insisting that

the said exhibits were not executed in conformity with law. The appeal wasmade directly to this Court because the value of the properties involvedexceeded two hundred thousand pesos.

Originally the opposition to the probate also charged that the testatrix lackedtestamentary capacity and that the dispositions were procured through undueinfluence. These grounds were abandoned at the hearing in the court below,where the issue was concentrated into three specific questions: (1) whetherthe testament of 1950 was executed by the testatrix in the presence of theinstrumental witnesses; (2) whether the acknowledgment clause was signedand the notarial seal affixed by the notary without the presence of thetestatrix and the witnesses; and (3) if so, whether the codicil was thereby


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rendered invalid and ineffective. These questions are the same onespresented to us for resolution.

The contestant argues that the Court below erred in refusing credence to herwitnesses Maria Paderogao and Vidal Allado, cook and driver, respectively,of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950,they saw and heard Vicente Yap (one of the witnesses to the will) inform thedeceased that he had brought the "testamento" and urge her to go toattorney Tabiana's office to sign it; that Da. Apolinaria manifested that shecould not go, because she was not feeling well; and that upon Yap'sinsistence that the will had to be signed in the attorney's office and notelsewhere, the deceased took the paper and signed it in the presence of Yapalone, and returned it with the statement that no one would question itbecause the property involved was exclusively hers.

Our examination of the testimony on record discloses no grounds forreversing the trial Court's rejection of the improbable story of thesewitnesses. It is squarely contradicted by the concordant testimony of theinstrumental witnesses, Vicente Yap, Atty. Ramon C. Tabiana, and his wifeGloria Montinola, who asserted under oath that the testament was executedby testatrix and witnesses in the presence of each other, at the house of the

decedent on General Hughes St., Iloilo City, on March 30, 1950. And it ishighly unlikely, and contrary to usage, that either Tabiana or Yap should haveinsisted that Da. Apolinaria, an infirm lady then over 80 years old, shouldleave her own house in order to execute her will, when all three witnessescould have easily repaired thither for the purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant'switnesses. Both claim to have heard the word "testamento" for the first timewhen Yap used it; and yet they claimed ability to recall that word four yearslater, despite the fact that the term meant nothing to either. It is well knownthat what is to be remembered must first be rationally conceived andassimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao waspositive that Yap brought the will, and that the deceased alone signed it,

precisely on March 30, 1950; but she could remember no other date, nor givesatisfactory explanation why that particular day stuck in her mind. Worse still,Allado claimed to have heard what allegedly transpired between Yap and Da.Apolinaria from the kitchen of the house, that was later proved to have beenseparated from the deceased's quarters, and standing at a much lower level,so that conversations in the main building could not be distinctly heard fromthe kitchen. Later, on redirect examination, Allado sought to cure histestimony by claiming that he was upstairs in a room where the servantsused to eat when he heard Yap converse with his mistress; but thiscorrection is unavailing, since it was plainly induced by two highly leadingquestions from contestant's counsel that had been previously ruled out by thetrial Court. Besides, the contradiction is hardly consonant with this witness'

18 years of service to the deceased.

Upon the other hand, the discrepancies in the testimony of the instrumentalwitnesses urged upon us by the contestant-appellant, concerning thepresence or absence of Aurelio Montinola at the signing of the testament orof the codicil, and the identity of the person who inserted the date therein, arenot material and are largely imaginary, since the witness Mrs. Tabianaconfessed inability to remember all the details of the transaction. Neither arewe impressed by the argument that the use of some Spanish terms in thecodicil and testament (like legado, partes iguales, plena propieda) is proofthat its contents were not understood by the testatrix, it appearing inevidence that those terms are of common use even in the vernacular, andthat the deceased was a woman of wide business interests.

The most important variation noted by the contestants concerns that signingof the certificate of acknowledgment (in Spanish) appended to the Codicil inVisayan, Exhibit E. Unlike the testament, this codicil was executed after theenactment of the new Civil Code, and, therefore, had to be acknowledgedbefore a notary public (Art. 806). Now, the instrumental witnesses (whohappen to be the same ones who attested the will of 1950) asserted that afterthe codicil had been signed by the testratrix and the witnesses at San PabloHospital, 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. Thevariance does not necessarily imply conscious perversion of truth on the partof the witnesses, but appears rather due to a well- established phenomenon,the tendency of the mind, in recalling past events, to substitute the usual andhabitual for what differs slightly from it (II Moore on Facts, p. 878; The EllenMcGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notarysigned the certification of acknowledgment in the presence of the testatrixand the witnesses, does not affect the validity of the codicil. Unlike the Codeof 1889 (Art. 699), the new Civil Code does not require that the signing of the

testator, witnesses and notary should be accomplished in one single act. Acomparison of Articles 805 and 806 of the new Civil Code reveals that whiletestator and witnesses must sign in the presence of each other, all that isthereafter required is that "every will must be acknowledged before a notarypublic by the testator and the witnesses" (Art. 806); i.e., that the latter shouldavow to the certifying officer the authenticity of their signatures and thevoluntariness of their actions in executing the testamentary disposition. Thiswas done in the case before us. The subsequent signing and sealing by thenotary of his certification that the testament was duly acknowledged by theparticipants therein is no part of the acknowledgment itself nor of thetestamentary act. Hence their separate execution out of the presence of thetestatrix and her witnesses can not be said to violate the rule that testaments

should be completed without interruption (Andalis vs. Pulgueras, 59 Phil.


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643), or, as the Roman maxim puts it, "uno eodem die ac tempore in eademloco", and no reversible error was committed by the Court in so holding. It isnoteworthy that Article 806 of the new Civil Code does not contain wordsrequiring that the testator and the witnesses should acknowledge thetestament on the same day or occasion that it was executed.

The decision admitting the will to probate is affirmed, with costs againstappellant.

Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, BautistaAngelo, Labrador and Concepcion, JJ., concur.

Garcia v Vasquez, 32 SCRA 489Not available

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of theDeceased Brigido Alvarado, CESAR ALVARADO, petitioner,

vs.HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIOQUETULIO LOSA and HON. LEONOR INES LUCIANO, AssociateJustices, Intermediate Appellate Court, First Division (Civil Cases), andBAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the FirstCivil Cases Division of the then Intermediate Appellate Court, now Court ofAppeals, which affirmed the Order dated 27 June 1983 2 of the Regional TrialCourt of Sta. Cruz, Laguna, admitting to probate the last will and testament 3

with codicil 4 of the late Brigido Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarialwill entitled "Huling Habilin" wherein he disinherited an illegitimate son(petitioner) and expressly revoked a previously executed holographic will at

the time awaiting probate before Branch 4 of the Regional Trial Court of sta.Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and byprivate respondent who were present at the execution, the testator did notread the final draf

IV Solemnities of Wills

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