G.R. No.

82027 March 29, 1990

ROMARICO
vs.
THE
HONORABLE
CORONA, respondents.

survivor or survivors, and shall be payable to and collectible or

withdrawable by such survivor or survivors.
G.

COURT

OF

VITUG, petitioner,
APPEALS

and

ROWENA

FAUSTINO-

Rufino B. Javier Law Office for petitioner.

Quisumbing, Torres & Evangelista for private respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the
two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November
10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said
decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs.
Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, 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 in the sum of P667,731.66, plus interests, which he
claimed were personal funds. As found by the Court of Appeals, 2the alleged advances
consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency
estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the
sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same
funds withdrawn from savings account No. 35342-038 were conjugal partnership properties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." 4
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 on June 19, 1970. The
agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN
NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as
the BANK), that all money now or hereafter deposited by us or any or
either of us with the BANK in our joint savings current account shall be the
property of all or both of us and shall be payable to and collectible or
withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the

We further agree with each other and the BANK that the receipt or check of
either, any or all of us during our lifetime, or the receipt or check of the
survivor or survivors, for any payment or withdrawal made for our abovementioned account shall be valid and sufficient release and discharge of
the BANK for such payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some
of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal
funds of Romarico Vitug in the total sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein
private respondent, held that the above-quoted 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," 8 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. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985
(Annex II, petition) is hereby set aside insofar as it granted private
respondent's motion to sell certain properties of the estate of Dolores L.
Vitug for reimbursement of his alleged advances to the estate, but the
same order is sustained in all other respects. In addition, respondent Judge
is directed to include provisionally the deposits in Savings Account No.
35342-038 with the Bank of America, Makati, in the inventory of actual
properties possessed by the spouses at the time of the decedent's death.
With costs against private respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength
of our decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in
which we sustained the validity of "survivorship agreements" and considering them as
aleatory contracts. 13
The petition is meritorious.
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." 14 In other words, the bequest or device must pertain to
the testator. 15 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. People's Bank and Trust Co., 16 we

rejected claims that a survivorship agreement purports to deliver one party's separate
properties in favor of the other, but simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the assumption that
Stephenson was the exclusive owner of the funds-deposited in the bank,
which assumption was in turn based on the facts (1) that the account was
originally opened in the name of Stephenson alone and (2) that Ana Rivera
"served only as housemaid of the deceased." But it not infrequently
happens that a person deposits money in the bank in the name of another;
and in the instant case it also appears that Ana Rivera served her master
for about nineteen years without actually receiving her salary from him.
The fact that subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the latter the
survivorship agreement in question although there was no relation of
kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank account.
In the absence, then, of clear proof to the contrary, we must give full faith
and credit to the certificate of deposit which recites in effect that the funds
in question belonged to Edgar Stephenson and Ana Rivera; that they were
joint (and several) owners thereof; and that either of them could withdraw
any part or the whole of said account during the lifetime of both, and the
balance, if any, upon the death of either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan,

18

it was held:

xxx xxx xxx

This Court is of the opinion that Exhibit C is an aleatory contract whereby,
according to article 1790 of the Civil Code, one of the parties or both
reciprocally bind themselves to give or do something as an equivalent for
that which the other party is to give or do in case of the occurrence of an
event which is uncertain or will happen at an indeterminate time. As
already stated, Leonarda was the owner of the house and Juana of the
Buick automobile and most of the furniture. By virtue of Exhibit C, Juana
would become the owner of the house in case Leonarda died first, and
Leonarda would become the owner of the automobile and the furniture if
Juana were to die first. In this manner Leonarda and Juana reciprocally
assigned their respective property to one another conditioned upon who
might die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This contract,
as any other contract, is binding upon the parties thereto. Inasmuch as
Leonarda had died before Juana, the latter thereupon acquired the
ownership of the house, in the same manner as Leonarda would have

acquired the ownership of the automobile and of the furniture if Juana had
died first. 19
xxx xxx xxx
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 marita.
relations. 20
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 spouse's 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, 21 by "mere stipulation" 22 and that it is no
"cloak" 23 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.
And since the funds were conjugal, it can not be said that one spouse could have pressured
the other in placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but
in reality, that contract imposed a mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally
bind themselves to give or to do something in consideration of what the
other shall give or do upon the happening of an event which is uncertain,
or which is to occur at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on either
the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate
time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on
the value of currency, and insurance have been held to fall under the first category, while a
contract for life annuity or pension under Article 2021, et sequentia, has been categorized
under the second. 25 In either case, the element of risk is present. In the case at bar, the risk
was the death of one party and survivorship of the other.
However, as we have warned:
xxx xxx xxx

But although the survivorship agreement is per se not contrary to law its
operation or effect may be violative of the law. For instance, if it be shown
in a given case that such agreement is a mere cloak to hide an inofficious
donation, to transfer property in fraud of creditors, or to defeat the legitime
of a forced heir, it may be assailed and annulled upon such grounds. No
such vice has been imputed and established against the agreement
involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had been executed for such
unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills,
donations, and conjugal partnership.
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.
WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its
resolution, dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.

It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to
distribute his estate in the manner provided in his will so long as it is legally tenable.[1]
Before us is a Petition for Review on Certiorari[2] of the June 15, 2006 Decision[3] of the
Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003
Decision[4] of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special
Proceedings No. G-1186. The assailed CA Decision granted the petition for probate of the
notarial will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be impressed with merit, the
decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new
one entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.
SO ORDERED.[5]

Also assailed herein is the August 31, 2006 CA Resolution[6] which denied the Motion for
Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision of the
RTC which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli
Nang Bilin o Testamento Miss Paciencia Regala[7] (Will) in the Pampango dialect on
September 13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin
(Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence
of the instrumental witnesses that the document is her last will and testament. She
thereafter affixed her signature at the end of the said document on page 3[8] and then on
the left margin of pages 1, 2 and 4 thereof.[9]
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution
by affixing their signatures below its attestation clause[10] and on the left margin of pages
1, 2 and 4 thereof,[11] in the presence of Paciencia and of one another and of Judge Limpin
who acted as notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:
xxxx

BALTAZAR VS LAXA, GR NO. 174489

DEL CASTILLO, J.:

Fourth - In consideration of their valuable services to me since then up to the present by the
spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all
my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and
CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the
spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently residing
at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and
KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who would
decide to bequeath since they are the children of the spouses;

xxxx
[Sixth] - Should other properties of mine may be discovered aside from the properties
mentioned in this last will and testament, I am also bequeathing and giving the same to the
spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command
them to offer masses yearly for the repose of my soul and that of D[]a Nicomeda Regala,
Epifania Regala and their spouses and with respect to the fishpond situated at San Antonio, I
likewise command to fulfill the wishes of D[]a Nicomeda Regala in accordance with her
testament as stated in my testament. x x x[12]

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.[13] Paciencia lived with Lorenzos family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo since his birth. Six days after the execution
of the Will or on September 19, 1981, Paciencia left for the United States of America (USA).
There, she resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
petition[14] with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and
for the issuance of Letters of Administration in his favor, docketed as Special Proceedings No.
G-1186.
There being no opposition to the petition after its due publication, the RTC issued an Order
on June 13, 2000[15] allowing Lorenzo to present evidence on June 22, 2000. On said date,
Dra. Limpin testified that she was one of the instrumental witnesses in the execution of the
last will and testament of Paciencia on September 13, 1981.[16] The Will was executed in her
fathers (Judge Limpin) home office, in her presence and of two other witnesses, Francisco
and Faustino.[17] Dra. Limpin positively identified the Will and her signatures on all its four
pages.[18] She likewise positively identified the signature of her father appearing thereon.
[19] Questioned by the prosecutor regarding Judge Limpins present mental fitness, Dra.
Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery.[20]
The judge can walk but can no longer talk and remember her name. Because of this, Dra.
Limpin stated that her father can no longer testify in court.[21]
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition[22] to Lorenzos petition. Antonio averred that the properties subject of Paciencias
Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia
had no right to bequeath them to Lorenzo.[23]
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition[24] contending that
Paciencias Will was null and void because ownership of the properties had not been
transferred and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3
of the Civil Code.[25] Petitioners also opposed the issuance of Letters of Administration in
Lorenzos favor arguing that Lorenzo was disqualified to be appointed as such, he being a
citizen and resident of the USA.[26] Petitioners prayed that Letters of Administration be
instead issued in favor of Antonio.[27]

Later still on September 26, 2000, petitioners filed an Amended Opposition[28] asking the
RTC to deny the probate of Paciencias Will on the following grounds: the Will was not
executed and attested to in accordance with the requirements of the law; that Paciencia was
mentally incapable to make a Will at the time of its execution; that she was forced to execute
the Will under duress or influence of fear or threats; that the execution of the Will had been
procured by undue and improper pressure and influence by Lorenzo or by some other
persons for his benefit; that the signature of Paciencia on the Will was forged; that assuming
the signature to be genuine, it was obtained through fraud or trickery; and, that Paciencia did
not intend the document to be her Will. Simultaneously, petitioners filed an Opposition and
Recommendation[29] reiterating their opposition to the appointment of Lorenzo as
administrator of the properties and requesting for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order[30] denying the requests of both Lorenzo and
Antonio to be appointed administrator since the former is a citizen and resident of the USA
while the latters claim as a co-owner of the properties subject of the Will has not yet been
established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin
was recalled for cross-examination by the petitioners. She testified as to the age of her
father at the time the latter notarized the Will of Paciencia; the living arrangements of
Paciencia at the time of the execution of the Will; and the lack of photographs when the
event took place. [31]
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand.
Monico, son of Faustino, testified on his fathers condition. According to him his father can no
longer talk and express himself due to brain damage. A medical certificate was presented to
the court to support this allegation. [32]
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980,
he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia
went to the USA and lived with him and his family until her death in January 1996; the
relationship between him and Paciencia was like that of a mother and child since Paciencia
took care of him since birth and took him in as an adopted son; Paciencia was a spinster
without children, and without brothers and sisters; at the time of Paciencias death, she did
not suffer from any mental disorder and was of sound mind, was not blind, deaf or mute; the
Will was in the custody of Judge Limpin and was only given to him after Paciencias death
through Faustino; and he was already residing in the USA when the Will was executed.[33]
Lorenzo positively identified the signature of Paciencia in three different documents and in
the Will itself and stated that he was familiar with Paciencias signature because he
accompanied her in her transactions.[34] Further, Lorenzo belied and denied having used
force, intimidation, violence, coercion or trickery upon Paciencia to execute the Will as he
was not in the Philippines when the same was executed.[35] On cross-examination, Lorenzo
clarified that Paciencia informed him about the Will shortly after her arrival in the USA but
that he saw a copy of the Will only after her death.[36]
As to Francisco, he could no longer be presented in court as he already died on May 21,
2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins.[37] She
claimed to have helped in the household chores in the house of Paciencia thereby allowing
her to stay therein from morning until evening and that during the period of her service in
the said household, Lorenzos wife and his children were staying in the same house.[38] She

served in the said household from 1980 until Paciencias departure for the USA on September
19, 1981.[39]
On September 13, 1981, Rosie claimed that she saw Faustino bring something for Paciencia
to sign at the latters house.[40] Rosie admitted, though, that she did not see what that
something was as same was placed inside an envelope.[41] However, she remembered
Paciencia instructing Faustino to first look for money before she signs them.[42] A few days
after or on September 16, 1981, Paciencia went to the house of Antonios mother and brought
with her the said envelope.[43] Upon going home, however, the envelope was no longer with
Paciencia.[44] Rosie further testified that Paciencia was referred to as magulyan or forgetful
because she would sometimes leave her wallet in the kitchen then start looking for it
moments later.[45] On cross examination, it was established that Rosie was neither a doctor
nor a psychiatrist, that her conclusion that Paciencia was magulyan was based on her
personal assessment,[46] and that it was Antonio who requested her to testify in court.[47]
In his direct examination, Antonio stated that Paciencia was his aunt.[48] He identified the
Will and testified that he had seen the said document before because Paciencia brought the
same to his mothers house and showed it to him along with another document on
September 16, 1981.[49] Antonio alleged that when the documents were shown to him, the
same were still unsigned.[50] According to him, Paciencia thought that the documents
pertained to a lease of one of her rice lands,[51] and it was he who explained that the
documents were actually a special power of attorney to lease and sell her fishpond and other
properties upon her departure for the USA, and a Will which would transfer her properties to
Lorenzo and his family upon her death.[52] Upon hearing this, Paciencia allegedly uttered
the following words: Why will I never [return], why will I sell all my properties? Who is
Lorenzo? Is he the only [son] of God? I have other relatives [who should] benefit from my
properties. Why should I die already?[53] Thereafter, Antonio advised Paciencia not to sign
the documents if she does not want to, to which the latter purportedly replied, I know
nothing about those, throw them away or it is up to you. The more I will not sign them.[54]
After which, Paciencia left the documents with Antonio. Antonio kept the unsigned
documents
and eventually turned them over to Faustino on September 18, 1981.[55]

does not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a
Will.[59] Moreover, the oppositors in the probate proceedings were not able to overcome the
presumption that every person is of sound mind. Further, no concrete circumstances or
events were given to prove the allegation that Paciencia was tricked or forced into signing
the Will.[60]
Petitioners moved for reconsideration[61] but the motion was denied by the CA in its
Resolution[62] dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing upon
the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE PROBATE
OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO COMPLY WITH SECTION 11,
RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT IN
ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS FAILED
TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS
ALLEGEDLY EXECUTED[63]

Ruling of the Regional Trial Court

The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.

On September 30, 2003, the RTC rendered its Decision[56] denying the petition thus:

Our Ruling

WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows
the notarized will dated September 13, 1981 of Paciencia Regala.

We deny the petition.

SO ORDERED.[57]

Faithful compliance with the formalities

laid down by law is apparent from the face of the Will.

The trial court gave considerable weight to the testimony of Rosie and concluded that at the
time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength
of mind to have testamentary capacity.[58]

Courts are tasked to determine nothing more than the extrinsic validity of a
Will in probate proceedings.[64] This is expressly provided for in Rule 75, Section 1 of the
Rules of Court, which states:

Ruling of the Court of Appeals

Rule 75
PRODUCTION OF WILL. ALLOWANCE OF WILL NECESSARY.

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of
Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia was of
unsound mind when she executed the Will. It ratiocinated that the state of being magulyan

Section 1. Allowance necessary. Conclusive as to execution. No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of
appeal, such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by law.
[65] These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the
attestation clause explicitly states the critical requirement that the testatrix and her
instrumental witnesses signed the Will in the presence of one another and that the witnesses
attested and subscribed to the Will in the presence of the testator and of one another. In
fact, even the petitioners acceded that the signature of Paciencia in the Will may be
authentic although they question her state of mind when she signed the same as well as the
voluntary nature of said act.

We agree with the position of the CA that the state of being forgetful does not necessarily
make a person mentally unsound so as to render him unfit to execute a Will.[68]
Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New
Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all
his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by
disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is
no substantial evidence, medical or otherwise, that would show that Paciencia was of
unsound mind at the time of the execution of the Will. On the other hand, we find more
worthy of credence Dra. Limpins testimony as to the soundness of mind of Paciencia when
the latter went to Judge Limpins house and voluntarily executed the Will. The testimony of
subscribing witnesses to a Will concerning the testators mental condition is entitled to great
weight where they are truthful and intelligent.[69] More importantly, a testator is presumed
to be of sound mind at the time of the execution of the Will and the burden to prove
otherwise lies on the oppositor. Article 800 of the New Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to
the contrary.
The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or
less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of
unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no
substantial evidence was presented by them to prove the same, thereby warranting the CAs
finding that petitioners failed to discharge such burden.

The burden to prove that Paciencia was of unsound mind at the time of the execution of the
will lies on the shoulders of the petitioners.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As
aptly pointed out by the CA:

Petitioners, through their witness Rosie, claim that Paciencia was magulyan or forgetful so
much so that it effectively stripped her of testamentary capacity. They likewise claimed in
their Motion for Reconsideration[66] filed with the CA that Paciencia was not only magulyan
but was actually suffering from paranoia.[67]

A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she
executed. She specially requested that the customs of her faith be observed upon her death.
She was well aware of how she acquired the properties from her parents and the properties
she is bequeathing to LORENZO, to his wife CORAZON and to his two (2) children. A third
child was born after the execution of the will and was not included therein as devisee.[70]

We are not convinced.

Bare allegations of duress or influence of fear or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as basis to deny the probate of a will.

An essential element of the validity of the Will is the willingness of the testator or testatrix to
execute the document that will distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia was forced to execute the Will under duress or influence of
fear or threats; that the execution of the Will had been procured by undue and improper
pressure and influence by Lorenzo or by some other persons for his benefit; and that
assuming Paciencias signature to be genuine, it was obtained through fraud or trickery.
These are grounded on the alleged conversation between Paciencia and Antonio on
September 16, 1981 wherein the former purportedly repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as
her own son and that love even extended to Lorenzos wife and children. This kind of
relationship is not unusual. It is in fact not unheard of in our culture for old maids or spinsters
to care for and raise their nephews and nieces and treat them as their own children. Such is
a prevalent and accepted cultural practice that has resulted in many family discords
between those favored by the testamentary disposition of a testator and those who stand to
benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo
and his family is different from her relationship with petitioners. The very fact that she cared
for and raised Lorenzo and lived with him both here and abroad, even if the latter was
already married and already has children, highlights the special bond between them. This
unquestioned relationship between Paciencia and the devisees tends to support the
authenticity of the said document as against petitioners allegations of duress, influence of
fear or threats, undue and improper influence, pressure, fraud, and trickery which, aside
from being factual in nature, are not supported by concrete, substantial and credible
evidence on record. It is worth stressing that bare arguments, no matter how forceful, if not
based on concrete and substantial evidence cannot suffice to move the Court to uphold said
allegations.[71] Furthermore, a purported will is not [to be] denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession will be shaken to its
foundation, for even if a will has been duly executed in fact, whether x x x it will be probated
would have to depend largely on the attitude of those interested in [the estate of the
deceased].[72]
Court should be convinced by the evidence presented before it that the Will was duly
executed.

Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule
76 of the Rules of Court was not complied with. It provides:
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 11. Subscribing witnesses produced or accounted for where will contested. If the will
is contested, all the subscribing witnesses, and the notary in the case of wills executed under
the Civil Code of the Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of such witnesses are present in the
Philippines but outside the province where the will has been filed, their deposition must be

taken. If any or all of them testify against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be
allowed if the court is satisfied from the testimony of other witnesses and from all the
evidence presented that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses
who know the handwriting of the testator explicitly declare that the will and the signature are
in the handwriting of the testator; in the absence of any competent witnesses, and if the
court deem it necessary, expert testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented
in court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.
We note that the inability of Faustino and Judge Limpin to appear and testify before the court
was satisfactorily explained during the probate proceedings. As testified to by his son,
Faustino had a heart attack, was already bedridden and could no longer talk and express
himself due to brain damage. To prove this, said witness presented the corresponding
medical certificate. For her part, Dra. Limpin testified that her father, Judge Limpin, suffered
a stroke in 1991 and had to undergo brain surgery. At that time, Judge Limpin could no
longer talk and could not even remember his daughters name so that Dra. Limpin stated that
given such condition, her father could no longer testify. It is well to note that at that point,
despite ample opportunity, petitioners neither interposed any objections to the testimonies
of said witnesses nor challenged the same on cross examination. We thus hold that for all
intents and purposes, Lorenzo was able to satisfactorily account for the incapacity and failure
of the said subscribing witness and of the notary public to testify in court. Because of this the
probate of Paciencias Will may be allowed on the basis of Dra. Limpins testimony proving her
sanity and the due execution of the Will, as well as on the proof of her handwriting. It is an
established rule that [a] testament may not be disallowed just because the attesting
witnesses declare against its due execution; neither does it have to be necessarily allowed
just because all the attesting witnesses declare in favor of its legalization; what is decisive is
that the court is convinced by evidence before it, not necessarily from the attesting
witnesses, although they must testify, that the will was or was not duly executed in the
manner required by law.[73]
Moreover, it bears stressing that [i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of
the law that it is the evidence before the court and/or [evidence that] ought to be before it
that is controlling.[74] The very existence of [the Will] is in itself prima facie proof that the
supposed [testatrix] has willed that [her] estate be distributed in the manner therein
provided, and it is incumbent upon the state that, if legally tenable, such desire be given full
effect independent of the attitude of the parties affected thereby.[75] This, coupled with
Lorenzos established relationship with Paciencia, the evidence and the testimonies of
disinterested witnesses, as opposed to the total lack of evidence presented by petitioners
apart from their self-serving testimonies, constrain us to tilt the balance in favor of the
authenticity of the Will and its allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the Resolution
dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are AFFIRMED.
SO ORDERED.

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed
Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been
staying in a veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a
child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz
(apparently a girl friend of Agapito) and who was later delivered to Marcelina Salvador
Suroza who brought her up as a supposed daughter of Agapito and as her granddaughter
(pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the surname Suroza. She stayed
with Marcelina but was not legally adopted by Agapito. She married Oscar Medrano and is
residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina Paje, a resident of
7668 J.B. Roxas Street.

A.M. No. 2026-CFI

December 19, 1981

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73
years old. That will which is in English was thumbmarked by her. She was illiterate. Her
letters in English to the Veterans Administration were also thumbmarked by her (pp. 38-39,
CA Rollo). In that wig, Marcelina bequeathed all her estate to her supposed granddaughter
Marilyn.

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.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of
her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned
a 150-square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record
of testate case).

AQUINO, J.:

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

Should disciplinary action be taken against respondent judge for having admitted to probate
a will, which on its face is void because it is written in English, a language not known to the
illiterate testatrix, and which is probably a forged will because she and the attesting
witnesses did not appear before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in
the Court of Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort
McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
childless. They reared a boy named Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945 marriage contract with Nenita de Vera
(p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case showing that Agapito was
5 years old when Mauro married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went
abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as
his guardian in 1953 when he was declared an incompetent in Special Proceeding No. 1807
of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to
be his guardian in another proceeding. Arsenia tried to prove that Nenita was living
separately from Agapito and that she (Nenita) admitted to Marcelina that she was unfaithful
to Agapito (pp. 61-63, Record of testate case).

As there was no opposition, Judge Honrado commissioned his deputy clerk of court,
Evangeline S. Yuipco, to hear the evidence. The transcripts of the stenographic notes taken
at the hearing before the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from
the savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon
Castro, the custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing
a deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V.
Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement
of Marcelina's estate. She and the other occupants of the decedent's house filed on April 18
in the said proceeding a motion to set aside the order of April 11 ejecting them. They alleged
that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter
named Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter
nor the decedent's granddaughter (pp. 52-68, Record of testate case). Later, they questioned
the probate court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than
Marilyn, were claiming Marcelina's estate, he issued on April 23 an order probating her
supposed will wherein Marilyn was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings,
admit opposition with counter-petition for administration and preliminary injunction". Nenita
in that motion reiterated her allegation that Marilyn was a stranger to Marcelina, that the will
was not duly executed and attested, that it was procured by means of undue influence
employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by
fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition
of Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina,
who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her
omnibus motion to set aside the proceedings (filed on April 24), Nenita filed the next day,
April 25, an opposition to the probate of the will and a counter-petition for letters of
administration. In that opposition, Nenita assailed the due execution of the will and stated
the names and addresses of Marcelina's intestate heirs, her nieces and nephews (pp. 113121, Record). Nenita was not aware of the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's
niece, who swore that Marcelina never executed a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn
was not Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz
and that Agapito was not Marcelina's 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 reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the alleged will is void because Marcelina did not
appear before the notary and because it is written in English which is not known to her (pp.
208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita
(p. 284, Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to
annul" the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs.
Paje and Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in
his order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had
delivered the estate to Marilyn, and that the estate tax had been paid, closed the
testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court,
Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The
complainant reiterated her contention that the testatrix was illiterate as shown by the fact
that she affixed her thumbmark to the will and that she did not know English, the language
in which the win was written. (In the decree of probate Judge Honrado did not make any
finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a
son named Agapito (the testatrix's supposed sole compulsory and legal heir), who was
preterited in the will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn
Sy and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her
cohorts to withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access
to the record of the probate case by alleging that it was useless for Nenita to oppose the
probate since Judge Honrado would not change his decision. Nenita also said that Evangeline
insinuated that if she (Nenita) had ten thousand pesos, the case might be decided in her
favor. Evangeline allegedly advised Nenita to desist from claiming the properties of the
testatrix because she (Nenita) had no rights thereto and, should she persist, she might lose
her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the
complaint. He merely pointed to the fact that Nenita did not appeal from the decree of
probate and that in a motion dated July 6, 1976 she asked for a thirty day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter
did not mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from
having access to the record of the testamentary proceeding. Evangeline was not the
custodian of the record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge
that she (Evangeline) said that the sum of ten thousand pesos was needed in order that
Nenita could get a favorable decision. Evangeline also denied that she has any knowledge of
Nenita's pension from the Federal Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the
Court Administrator's memorandum of September 25, 1980. The case was referred to Justice
Juan A. Sison of the Court of Appeals for investigation, report and recommendation. He
submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition
for certiorari and prohibition wherein she prayed that the will, the decree of probate and all
the proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He
swore that the testatrix and the three attesting witnesses did not appear before him and that
he notarized the will "just to accommodate a brother lawyer on the condition" that said
lawyer would bring to the notary the testatrix and the witnesses but the lawyer never
complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her
failure to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs.
Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.

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

The case against respondent Yuipco has become moot and academic because she is no
longer employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal
of Surigao City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory

order or rendering a manifestly unjust judgment or interlocutory order by reason of
inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal Code).

SO ORDERED.110 SCRA 388 Succession Will Should be Written in a Language Known to

the Testator

Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful
intent, not a mere error of judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or inspired by an
intention to violate the law, or were in persistent disregard of well-known legal rules" (In re
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 the performance of his duties that
diligence, prudence and circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English
and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that
the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood
and known" to the testatrix. But in its concluding paragraph, it was stated that the will was
read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case).
That could only mean that the will was written in a language not known to the illiterate
testatrix and, therefore, it is void because of the mandatory provision of article 804 of the
Civil Code that every will must be executed in a language or dialect known to the testator.
Thus, a will written in English, which was not known to the Igorot testator, is void and was
disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator"
instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the
anomaly as to the language of the will but also that there was something wrong in instituting
the supposed granddaughter as sole heiress and giving nothing at all to her supposed father
who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted
the hearing on the probate of the will so that he could have ascertained whether the will was
validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine
equivalent to his salary for one month is imposed on respondent judge (his compulsory
retirement falls on December 25, 1981).

In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and lot
to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the executrix
in the said will and she petitioned before CFI Rizal that the will be admitted to probate. The
presiding judge, Honrado admitted the will to probate and assigned Paje as the
administratrix. Honrado also issued an ejectment order against the occupants of the house
and lot subject of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in
the Veterans Hospital), learned of the probate proceeding when she received the ejectment
order (as she was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said notarial will is void
because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a
stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written in English a language not known to Marcelina
because the latter was illiterate so much so that she merely thumbmarked the will, (d) the
notary public who notarized will admitted that Marcelina never appeared before him and that
he notarized the said will merely to accommodate the request of a lawyer friend but with the
understanding that Marcelina should later appear before him but that never happened.
Honrado still continued with the probate despite the opposition until testamentary
proceeding closed and the property transferred to Marilyn Sy.
Nenita then filed this administrative case against Honrado on the ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary
proceeding, this showed his wrongful intent. He may even be criminally liable for knowingly
rendering an unjust judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence or ignorance.
The will is written in English and was thumb marked by an obviously illiterate Marcelina. This
could have readily been perceived by Honrado that 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. Had Honrado 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 to Marilyn Sy as sole heiress and giving nothing at all to
Agapito who was still alive.
Honrado was fined by the Supreme Court.

vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
GODDARD, J.:
Both parties in this case appeal from an order of the trial court denying the probate of the
alleged will of Leoncia Tolentino, deceased. That court found that the will in question was
executed by the deceased on the date appearing thereon, September 7, 1933, one day
before the death of the testatrix, contrary to the contention of the oppositor that it was
executed after her death. The court, however, denied probate on the ground that the
attestation clause was not in conformity with the requirements of law in that it is not stated
therein that the testatrix caused Attorney Almario to write her name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in
not finding that the will in question was executed after the death of Leoncia Tolentino, or that
she was mentally and physically incapable of executing said will one day before her death.
After a careful examination of the evidence on these points we find no reason for setting
aside the conclusion of the trial court as set forth above. The assignments of the oppositorappellant are therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial court denied
probate of the will on the sole ground that the attestation clause does not state that the
testratrix requested Attorney Almario to write her name.
The last paragraph of the questioned will reads in part as follows:
En prueba de todo lo cual, firmo el presente testamento con mi marcha digital, poque no
puedo estampar mi firma a causa de mi debilidad, rogando al abogado M. Almario que poga
mi nombre en el sitio donde he de estampar mi marcha digital . . ..

G.R. No. L-42258

In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitionerappellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Goddard, J.:
LEONCIA TOLENTINO. VICTORIO PAYAD vs. AQUILINA TOLENTINO
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. L-42258 January 15, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,

The evidence of record established the fact that Leoncia Tolentino, assisted by Attorney
Almario, placed her thumb mark on each and every age of time questioned will and the said
attorney merely wrote her name to indicate the place where she placed said thumb mark. In
other words Attorney Almario did not sign for the testatrix. She signed for placing her thumb
mark on each and every page thereof "A statute requiring a will to be 'signed' is satisfied if
the signature is made by the testator's mark." (Quoted by this court from 28 R.C.L., p, 117;
De Gala vs. Gonzales and Ona, 53 Phil. 104, 108.) It is clear, therefore, that it was not
necessary that the attestation clause in question should state that the testatrix requested
Attorney Almario to sign her 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 hereby admited to probate with the costs of this appeal against the oppositorappellant.

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three
the continuation of this attestation clause; this will is written in Ilocano dialect which
is spoken and understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the presence of
the testator and witnesses, and the witnesses in the presence of the testator and all
and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the
attestation clause failed (1) to certify that the will was signed on all the left margins of the
three pages and at the end of the will by Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and every one of the witnesses; (2) to
certify that after the signing of the name of the testator by Atty. Javier at the former's
request said testator has written a cross at the end of his name and on the left margin of the
three pages of which the will consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the presence of the testator and of each
other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written by the testator after
his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage.
Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104;
Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we

are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a thumbmark.

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

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

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

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

MORELAND, J.:

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

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and
another, No. 6284,1just decided by this court, wherein there was an application for the
probate of an alleged last will and testament of the same person the probate of whose will is
involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a
last will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda,
Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution
thereof. By the terms of said will Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation
into Spanish appears at page 11. After disposing of her property the testatrix revoked all
former wills by her made. She also stated in said will that being unable to read or write, the
same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that she had
instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the
deceased on various grounds, among them that a later will had been executed by the
deceased. The will referred to as being a later will is the one involved in case No. 6284
already referred to. Proceeding for the probate of this later will were pending at the time. The
evidence of the proponents and of the opponents was taken by the court in both cases for
the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to
probate upon the sole ground that the handwriting of the person who it is alleged signed the
name of the testatrix to the will for and on her behalf looked more like the handwriting of one
of the other witnesses to the will than that of the person whose handwriting it was alleged to
be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is
sufficient to overcome the uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request and in her presence
and in the presence of all the witnesses to the will. It is immaterial who writes the name of
the testatrix provided it is written at her request and in her presence and in the presence of
all the witnesses to the execution of the will.

G.R. No. L-6285

February 15, 1912

The court seems , by inference at least, to have had in mind that under the law relating to
the execution of a will it is necessary that the person who signs the name of the testatrix
must afterwards sign his own name; and that, in view of the fact that, in the case at bar, the
name signed below that of the testatrix as the person who signed her name, being, from its
appearance, not the same handwriting as that constituting the name of the testatrix, the will
is accordingly invalid, such fact indicating that the person who signed the name of the

testatrix failed to sign his own. We do not believe that this contention can be sustained.
Section 618 of the Code of Civil Procedure reads as follows:

point. The headnote in the case last above stated gives an indication of what all of cases are
and the question involved in each one of them. It says:

No will, except as provided in the preceding section, shall be valid to pass any
estate, real or personal, nor charge or effect the same, unless it be in writing and
signed by the testator, or by the testator's name written by some other person in
his presence, and by his expenses direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of each. . . .

The testatrix was not able to sign it for her. Instead of writing her name he wrote his
own upon the will.Held, That the will was not duly executed.

This is the important part of the section under the terms of which the court holds that the
person who signs the name of the testator for him must also sign his own name The
remainder of the section reads:
The attestation shall state the fact that the testator signed the will, or caused it to
be signed by some other person, at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his presence and in the
presence of each other. But the absence of such form of attestation shall not render
the will invalid if it is proven that the will was in fact signed and attested as in this
section provided.
From these provisions it is entirely clear that, with respect to the validity of the will, it is
unimportant whether the person who writes the name of the testatrix signs his own or not.
The important thing is that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they attested and subscribed it
in her presence and in the presence of each other. That is all the statute requires. It may be
wise as a practical matter that the one who signs the testator's name signs also his own; but
that it is not essential to the validity of the will. Whether one parson or another signed the
name of the testatrix in this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the requirement laid down by the
trial court, if it did lay down, is absolutely unnecessary under the law; and the reasons
underlying the provisions of the statute relating to the execution of wills do not in any sense
require such a provision. From the standpoint of language it is an impossibility to draw from
the words of the law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not four.

All of the above cases are precisely of this character. Every one of them was a case in which
the person who signed the will for the testator wrote his own name to the will instead of
writing that of the testator, so that the testator's name nowhere appeared attached to the
will as the one who executed it. The case of Ex parte Arcenas contains the following
paragraph:
Where a testator does not know, or is unable for any reason, to sign the will himself,
it shall be signed in the following manner: "John Doe, by the testator, Richard Roe;"
or in this form: "By the testator. John Doe, Richard Roe." All this must be written by
the witness signing at the request of the testator.
The only question for decision in that case, as we have before stated, was presented by the
fact that the person who was authorized to sign the name of the testator to the will actually
failed to sign such name but instead signed his own thereto. The decision in that case related
only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case have
set forth no reason whatever why the will involved in the present litigation should not be
probated. The due and legal execution of the will by the testatrix is clearly established by the
proofs in this case. Upon the facts, therefore, the will must be probated. As to the defense of
a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We
there held that said later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed
to enter an order in the usual form probating the will involved in this litigation and to proceed
with such probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.

Nor is such requirement found in any other branch of the law. The name of a person who is
unable to write may be signed by another by express direction to any instrument known to
the law. There is no necessity whatever, so far as the validity of the instrument is concerned,
for the person who writes the name of the principal in the document to sign his own name
also. As a matter of policy it may be wise that he do so inasmuch as it would give such
intimation as would enable a person proving the document to demonstrate more readily the
execution by the principal. But as a matter of essential validity of the document, it is
unnecessary. The main thing to be established in the execution of the will is the signature of
the testator. If that signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved as perfectly
and as completely when the person signing for the principal omits to sign his own name as it
can when he actually signs. To hold a will invalid for the lack of the signature of the person
signing the name of the principal is, in the particular case, a complete abrogation of the law
of wills, as it rejects and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which
we have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4
Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in

G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the
person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof
to be published for three (3) successive weeks, previous to the time appointed, in the
newspaper "Manila chronicle", and also caused personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on November 18, 1958, the court issued
an order appointing the Philippine Trust Company as special administrator.1wph1.t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence;
but on June 1, 1959, he filed a motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed duplicate (Exhibit "A-1"),
which he allegedly found only on or about May 26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of July 20, 1959, the
court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her

amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate.
From this order, the oppositors appealed directly to this Court, the amount involved being
over P200,000.00, on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the
City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte
executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr.
Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in
and for the City of Manila; and that the will was actually prepared by attorney Fermin
Samson, who was also present during the execution and signing of the decedent's last will
and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the
decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at
the time of the hearing, and both testified as to the due execution and authenticity of the
said will. So did the Notary Public before whom the will was acknowledged by the testatrix
and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he prepared one original and
two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he
brought only one original and one signed copy to Manila, retaining one unsigned copy in
Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the
end and in every page, it does not contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the
amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix
and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the
will and its duplicate were subscribed at the end and on the left margin of each and every
page thereof by the testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as witnesses (except for the
missing signature of attorney Natividad on page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is signed by the aforesaid
attesting witnesses; that the will is written in the language known to and spoken by the
testatrix that the attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate copies; and that
both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits
that he may have lifted two pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of
the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed
on the same occasion as the original, and further aver that granting that the documents
were genuine, they were executed through mistake and with undue influence and pressure
because the testatrix was deceived into adopting as her last will and testament the wishes of
those who will stand to benefit from the provisions of the will, as may be inferred from the
facts and circumstances surrounding the execution of the will and the provisions and
dispositions thereof, whereby proponents-appellees stand to profit from properties held by
them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not mentioned in the will,
and not to oppose the probate of it, on penalty of forfeiting their share in the portion of free
disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary
public who acknowledged the will; and Atty. Samson, who actually prepared the documents;
that the will and its duplicate were executed in Tagalog, a language known to and spoken by
both the testator and the witnesses, and read to and by the testatrix and Atty. Fermin
Samson, together before they were actually signed; that the attestation clause is also in a
language known to and spoken by the testatrix and the witnesses. The opinion of expert for
oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing in the duplicate
original were not written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted by expert Martin
Ramos for the proponents, but principally because of the paucity of the standards used by
him to support the conclusion that the differences between the standard and questioned
signatures are beyond the writer's range of normal scriptural variation. The expert has, in
fact, used as standards only three other signatures of the testatrix besides those affixed to
the original of the testament (Exh. A); and we feel that with so few standards the expert's
opinion and the signatures in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that the are radical differences that would justify the charge of forgery,
taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings were
affixed to different kinds of paper, with different surfaces and reflecting power. On the whole,
therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that
of the notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag,
14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason
for making a testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other property and that they
should respect the distribution made in the will, under penalty of forfeiture of their shares in
the free part do not suffice to prove fraud or undue influence. They appear motivated by the
desire to prevent prolonged litigation which, as shown by ordinary experience, often results
in a sizeable portion of the estate being diverted into the hands of non-heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated on another occassion. It is
also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz.
168, fraud and undue influence are mutually repugnant and exclude each other; their joining
as grounds for opposing probate shows absence of definite evidence against the validity of
the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of the
seal of the notary public before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and
the evidence on record attests to the full observance of the statutory requisites. Otherwise,
as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure
oversight is shown by his own testimony as well as by the duplicate copy of the will, which
bears a complete set of signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court departs from a strict and literal application of
the statutory requirements, where the purposes of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court has held that a testament, with the only page
signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the first page either by letters
or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify
the Court's policy to require satisfaction of the legal requirements in order to guard against
fraud and bid faith but without undue or unnecessary curtailment of the testamentary
privilege.

The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original
because it lacked one signature in its third page, it is easily discerned that oppositorsappellants run here into a dilemma; if the original is defective and invalid, then in law there
is no other will but the duly signed carbon duplicate (Exh. A-1), and the same is probatable. If
the original is valid and can be probated, then the objection to the signed duplicate need not
be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1,
serves to prove that the omission of one signature in the third page of the original testament
was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication
does not affect the jurisdiction of the probate court, already conferred by the original
publication of the petition for probate. The amended petition did not substantially alter the
one first filed, but merely supplemented it by disclosing the existence of the duplicate, and
no showing is made that new interests were involved (the contents of Exhibit A and A-1 are
admittedly identical); and appellants were duly notified of the proposed amendment. It is
nowhere proved or claimed that the amendment deprived the appellants of any substantial
right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.

November 12, 1919

G.R. No. L-13431
In re will of Ana Abangan. GERTRUDIS ABANGAN,
ANASTACIA ABANGAN, ET AL., opponents-appellants.

executrix-appellee,

vs.

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 the opponent's appealed. Said
document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban
(in the name and under the direction of the testatrix) and by three witnesses. The following
sheet contains only the attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should have been denied.
We are of the opinion that the will was duly admitted to probate. In requiring that each and
every sheet of the will should also be signed on the left margin by the testator and three
witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the
case) evidently has for its object (referring to the body of the will itself) to avoid the
substitution of any of said sheets, thereby changing the testator's dispositions. But when
these dispositions are wholly written on only one sheet signed at the bottom by the testator
and three witnesses (as the instant case), their signatures on the left margin of said sheet
would be completely purposeless. In requiring this signature on the margin, the statute took
into consideration, undoubtedly, the case of a will written on several sheets and must have
referred to the sheets which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the statute such an
intention. As these signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom of the sheet
guaranties its authenticity, another signature on its left margin would be unneccessary; and
if they do not guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the place where the
testator and the witnesses must sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the
margin, give sufficient security. In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear
that the object of Act No. 2645 is to know whether any sheet of the will has been removed.
But, when all the dispositive parts of a will are written on one sheet only, the object of the
statute disappears because the removal of this single sheet, although unnumbered, cannot
be hidden. What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the will, we hold that in
the one accompanying the will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the signature of the testatrix, we can
add that same is not necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the latter does not attest, but

executes, the will. Synthesizing our opinion, we hold that in a will consisting of two sheets
the first of which contains all the testamentary dispositions and is signed at the bottom by
the testator and three witnesses and the second contains only the attestation clause and is
signed also at the bottom by the three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged. The object of
the solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primordal ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustative of the testator's last will, must be disregarded. As another ground for this
appeal, it is alleged the records do not show that the testarix knew the dialect in which the
will is written. But the circumstance appearing in the will itself that same was executed in
the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to presume that she knew this dialect in
which this will is written. For the foregoing considerations, the judgment appealed from is
hereby affirmed with costs against the appellants. So ordered.

BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has substantially complied with the formalities of
the law and, therefore, should be admitted to probate . It appears that the will was signed by
the testator and was attested by three instrumental witnesses, not only at the bottom, but
also on the left-hand margin. The witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but also that when they did so,
the attestation clause was already written thereon. Their testimony has not been
contradicted. The only objection set up by the oppositors to the validity of the will is the fact
that the signatures of the instrumental witnesses do not appear immediately after the
attestation clause.
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance
of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because
its attestation clause is not signed by the attesting witnesses. There is no question that the
signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is 'a memorandum of the facts attending the execution of the will' required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the
legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied.
So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions

This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40
Phil., 476), this court said that when the testamentary dispositions "are wholly written on
only one sheet signed at the bottom by the testator and three witnesses (as the instant
case),their signatures on the left margin of said sheet would be completely purposeless." In
such a case, the court said, the requirement of the signatures on the left hand margin was
not necessary because the purpose of the law which is to avoid the substitution of any of
the sheets of the will, thereby changing the testator's dispositions has already been
accomplished. We may say the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign immediately by the majority
that it may have been only added on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation clause was already written in
the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it i not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary useless and frustrative of the testator's last
will, must be disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation
that would have the effect of preventing intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.

time when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:

G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the
appeal and necessitates the affirmance of the decree admitting the document to probate as
the last will and testament of the deceased.

The true test of presence of the testator and the witnesses in the execution of a will
is not whether they actually saw each other sign, but whether they might have been
seen each other sign, had they chosen to do so, considering their mental and
physical condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in the
case relied upon by the trial judge discloses that "at the moment when the witness Javellana
signed the document he was actually and physically present and in such position with
relation to Jaboneta that he could see everything that took place by merely casting his eyes
in the proper direction and without any physical obstruction to prevent his doing so." And the
decision merely laid down the doctrine that the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon the paper at
the moment of its subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely casting the eyes in
the proper direction they could have seen each other sign. To extend the doctrine further
would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one
of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

The trial judge does not appear to have considered the determination of this question of fact
of vital importance in the determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial
Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate
the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the
son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc,
Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pagunawa at memoria ay
naghahayag na ito na ang aking huling habilin at testamento,
at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma
sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang tagapag-ingat (Executor) nghabiling ito ay magtatayo ng bantayog upang silbin
g ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aki
ng pamangkin na
si
Felix
Azuela,
na siyang nag-alaga sa
akin
sa mahabang panahon, yaong mgabahay na nakatirik sa lote numero 28,
Block
24
at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang la
hat ng karapatan sa bahay na nakatirik sa inoopahankong lote, numero 43,
Block
24
na pagaari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
Sampaloc,
Manila kay Felix
Azuela
at ang pagkakaloob kong ito ay walang pasubalit at kondiciones;
AZUELA VS COURT OF APPEALS
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia
E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give
legal recognition to the due execution of this document, the Court is provided the
opportunity to assert a few important doctrinal rules in the execution of notarial wills, all selfevident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause is not
signed by the instrumental witnesses is fatally defective. And perhaps most
importantly, a will which does not contain an acknowledgment, but a merejurat, is
fatally defective. Any one of these defects is sufficient to deny probate. A notarial
will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog
of imperatives for the proper execution of a notarial will. Full and faithful compliance with all
the detailed requisites under Article 805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article 806 likewise imposes another
safeguard to the validity of notarial wills that they be acknowledged before a notary public
by the testator and the witnesses. A notarial will executed with indifference to these two
codal provisions opens itself to nagging questions as to its legitimacy.

PangatloNa ninunumbrahan ko si
VART
PAGUE
na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hin
di na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo,
1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia
E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Huny
o 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit
at
sa kaliwang panig ng lahat at bawat dahon,
sa harap ng lahat at bawat sa amin,
atkami namang mga saksi ay lumagda sa harap ng nasabing tagapagmana

at
sa harap ng lahat at bawat isa sa amin,
sa ilalim ng nasabing kasulatan at
sa kaliwang panig ng lahat atbawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,
1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8[1]
The three named witnesses to the will affixed their signatures on the left-hand margin of
both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided
abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to
the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented
herself as the attorney-in-fact of the 12 legitimate heirs of the decedent. [2]Geralda Castillo
claimed that the will is a forgery, and that the true purpose of its emergence was so it could
be utilized as a defense in several court cases filed by oppositor against petitioner,
particularly for forcible entry and usurpation of real property, all centering on petitioners
right to occupy the properties of the decedent. [3] It also asserted that contrary to the
representations of petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, [4] and the mother
of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months. [5]

Oppositor Geralda Castillo also argued that the will was not executed and attested
to in accordance with law. She pointed out that decedents signature did not appear on the
second page of the will, and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.[6] The
RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino
Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore the modern
tendency in respect to the formalities in the execution of a will x x x with the end in view of
giving the testator more freedom in expressing his last wishes; [7] and from this perspective,
rebutted oppositors arguments that the will was not properly executed and attested to in
accordance with law.
After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in mind
the modern tendency in respectto the formalities in the execution of a
will, i.e., the liberalization of the interpretation of the law on the formal
requirements of a will with the end in view of giving the testator more
freedom in expressing his last wishes, this Court is persuaded to rule that
the will in question is authentic and had been executed by the testatrix in
accordance with law.
On the issue of lack of acknowledgement, this Court has noted
that at the end of the will after the signature of the testatrix, the following
statement is made under the sub-title, Patunay Ng Mga Saksi:
Ang kasulatang ito,
na binubuo ng _____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia
N.
Igsolo, tagapagmana na siya niyang HulingHabilin, ngayo
ng ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasu
latang nabanggit at
sa kaliwang panig ng lahat at bawat dahon,
saharap ng lahat at bawat sa amin,
at kami namang mga saksi ay lumagda sa harap ng nasa
bing tagapagmana at
sa harap ng lahat at bawat isa sa amin,
sa ilalim ngnasabing kasulatan at
sa kaliwang panig ng lahat at bawat dahon ng kasulatan i
to.
The aforequoted declaration comprises the attestation clause and
the acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not
signed by the subscribing witnesses at the bottom thereof, this Court is of
the view that the signing by the subscribing witnesses on the left margin of
the second page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof, substantially satisfies
the purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not
numbered correlatively in letters placed on upper part of each page and
that the attestation did not state the number of pages thereof, it is worthy
to note that the will is composed of only two pages. The first page contains

the entire text of the testamentary dispositions, and the second page
contains
the
last
portion
of
the
attestation
clause
and
acknowledgement. Such being so, the defects are not of a serious nature
as to invalidate the will. For the same reason, the failure of the testatrix to
affix her signature on the left margin of the second page, which contains
only the last portion of the attestation clause and acknowledgment is not a
fatal defect.
As regards the oppositors assertion that the signature of the
testatrix on the will is a forgery, the testimonies of the three subscribing
witnesses to the will are convincing enough to establish the genuineness of
the signature of the testatrix and the due execution of the will. [8]
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the
Court of Appeals reversed the trial court and ordered the dismissal of the petition for
probate.[9] The Court of Appeals noted that the attestation clause failed to state the number
of pages used in the will, thus rendering the will void and undeserving of probate. [10]
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that the
number of pages used in a notarial will be stated in the attestation clause is merely
directory, rather than mandatory, and thus susceptible to what he termed as the substantial
compliance rule.[11]
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code,
which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which
the will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.

If the attestation clause is in a language not known to the

witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public

by the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk of
Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of
the will.[12] There was an incomplete attempt to comply with this requisite, a space having
been allotted for the insertion of the number of pages in the attestation clause. Yet the blank
was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca[13] and In re: Will of Andrada.[14] InUy Coque, the Court
noted that among the defects of the will in question was the failure of the attestation clause
to state the number of pages contained in the will. [15] In ruling that the will could not be
admitted to probate, the Court made the following consideration which remains highly
relevant to this day: The purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be so prepared that the
removal of a sheet would completely change the testamentary dispositions of the
will and in the absence of a statement of the total number of sheets such removal
might be effected by taking out the sheet and changing the numbers at the top of
the following sheets or pages. If, on the other hand, the total number of sheets is stated
in the attestation clause the falsification of the document will involve the inserting of new
pages and the forging of the signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty.[16]
The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was sufficient
for the Court to declare unanim[ity] upon the point that the defect pointed out in the
attesting clause is fatal.[17] It was further observed that it cannot be denied that the x x x
requirement affords additional security against the danger that the will may be tampered
with; and as the Legislature has seen fit to prescribe this requirement, it must be considered
material.[18]
Against these cited cases, petitioner cites Singson v. Florentino[19] and Taboada v.
Hon. Rosal,[20] wherein the Court allowed probate to the wills concerned therein despite the
fact that the attestation clause did not state the number of pages of the will. Yet the
appellate court itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit D), will readily
show that the attestation does not state the number of pages used upon
which the will is written. Hence, the Will is void and undeserving of
probate.
We are not impervious of the Decisions of the Supreme Court in Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio
[Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195, to the effect
that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of Manuel Singson versus

Emilia Florentino, et al., supra, although the attestation in the subject Will
did not state the number of pages used in the will, however, the same was
found in the last part of the body of the Will:
xxx
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement
has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of
some of the pages of the will to the prejudice of the heirs
to whom the property is intended to be bequeathed (In re
Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30;
Quinto
vs.
Morata,
54
Phil.
481; Echevarria vs. Sarmiento,
66
Phil.
611). The ratio decidendi of these cases seems to be that
the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied,
not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is
written, however, the last part of the body of the will
contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the
realm of similar cases where a broad and more liberal
view has been adopted to prevent the will of the testator
from
being
defeated
by
purely
technical
considerations. (page
165-165,
supra) (Underscoring
supplied)
In Apolonio Tabaoda versus Hon. Avelino Rosal, et al. supra, the notarial
acknowledgement in the Will states the number of pages used in the:
xxx
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this
case, it is discernible from the entire will that it is really and
actually composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page
which is marked as Pagina dos comprises the attestation clause
and the acknowledgment. The acknowledgment itself states that
this Last Will and Testament consists of two pages including this
page (pages 200-201, supra) (Underscoring supplied).

However, in the appeal at bench, the number of pages used in the will is
not stated in any part of the Will. The will does not even contain any
notarial acknowledgment wherein the number of pages of the will should
be stated.[21]
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code
in 1950, at a time when the statutory provision governing the formalrequirement of wills was
Section

618 of the Code of Civil Procedure. [22] Reliance on these cases remains apropos, considering
that the requirement that the attestation state the number of pages of the will is extant from
Section 618.[23] However, the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the attestation clause is
concerned, that may vary from the philosophy that governed these two cases. Article 809 of
the Civil Code states: In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article 805.
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that the underlying and fundamental objective permeating the provisions on the [law]
on [wills] in this project consists in the [liberalization] of the manner of their execution with
the end in view of giving the testator more [freedom] in [expressing] his last wishes. This
objective is in accord with the [modern tendency] in respect to the formalities in the
execution of wills.[24] However, petitioner conveniently omits the qualification offered by the
Code Commission in the very same paragraph he cites from their report, that such
liberalization be but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the testator. [25]
Caneda v. Court of Appeals[26] features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation clause in
wills.[27] Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction. [28] However, the Code
Commission opted to recommend a more liberal construction through the substantial
compliance rule under Article 809. A cautionary note was struck though by Justice J.B.L.
Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all
persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only
check against perjury in the probate proceedings.[29] (Emphasis
supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded. In Caneda itself,
the Court refused to allow the probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other,[30] the other omission cited by Justice J.B.L. Reyes which to his
estimation cannot be lightly disregarded.
Caneda suggested: [I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation of the attestation clause

and ultimately, of the will itself. [31] Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to state that the witnesses
signed in one anothers presence should be considered a fatal flaw since the attestation is the
only textual guarantee of compliance.[32]
The failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages.[33] The failure to state the number of pages equates with the absence
of an averment on the part of the instrumental witnesses as to how many pages consisted
the will, the execution of which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the will states
elsewhere in it how many pages it is comprised of, as was the situation
in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of pages which comprise
the will.
At the same time, Article 809 should not deviate from the need to comply with the
formal requirements as enumerated under Article 805. Whatever the inclinations of the
members of the Code Commission in incorporating Article 805, the fact remains that they
saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of
the Code of Civil Procedure, convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills. [34] Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort that the testator himself
or herself had decided to convey property post mortem in the manner established in the will.
[35]
The transcendent legislative intent, even as expressed in the cited comments
of the Code Commission, is for the fruition of the testators incontestable desires,
and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the bottom of the attestation clause which after all
consists of their averments before the notary public.
Cagro v. Cagro[36] is material on this point. As in this case, the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses on the left-hand margin. [37] While
three (3) Justices[38] considered the signature requirement had been substantially complied
with, a majority of six (6), speaking through Chief Justice Paras, ruled that the attestation
clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will
do not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts attending
the execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned

attestation clause cannot be considered as an act of the witnesses, since

the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If
an attestation clause not signed by the three witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the testator and any
or all of the witnesses.[39]
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will, from
the requisite that the will be attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that the witnesses
are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses signatures on each and every
page, the fact must be noted that it is the attestation clause which contains the utterances
reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not
the testator, who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. The only proof in the will that the witnesses
have stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that every will must be acknowledged
before a notary public by the testator and the witnesses has also not been complied with.
The importance of this requirement is highlighted by the fact that it had been segregated
from the other requirements under Article 805 and entrusted into a separate provision,
Article 806. The non-observance of Article 806 in this case is equally as critical as the other
cited flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10
(sic),
1981 dito sa Lungsodng Maynila.[40] By no manner of contemplation can those words be
construed as an acknowledgment. An acknowledgment is the act of one who has executed a
deed in going before some competent officer or court and declaring it to be his act or deed.
[41]
It involves an extra step undertaken whereby the signor actually declares to the

notary that the executor of a document has attested to the notary that the same is his/her
own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the notary
certifies that before him/her, the document was subscribed and sworn to by the executor.
[42]
Ordinarily, the language of the jurat should avow that the document was subscribed and
sworn before the notary public, while in this case, the notary public averred that he himself
signed and notarized the document. Possibly though, the word ninotario or notarized
encompasses the signing of and swearing in of the executors of the document, which in this
case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that the will
be acknowledged, and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental witnesses
executed or signed the will as their own free act or deed. The acknowledgment made in a
will provides for another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an empty meaningless
act.[43] The acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as their own
free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for
the criminal prosecution of persons who participate in the execution of spurious wills, or
those executed without the free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the testamentary dispositions to
those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary public by
the testator and the witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by
the will in question. We need not discuss them at length, as they are nolonger material to the
disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and that
all the pages shall be numbered correlatively in letters placed on the upper part of each
page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on
the left margin, her only signature appearing at the so-called logical end [44] of the will on its
first page. Also, the will itself is not numbered correlatively in letters on each page, but
instead numbered with Arabic numerals. There is a line of thought that has disabused the
notion that these two requirements be construed as mandatory. [45] Taken in isolation, these
omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these
omissions are not decisive to the adjudication of this case, they need not be dwelt on,
though indicative as they may be of a general lack of due regard for the requirements under
Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the
Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses
in the presence of the testator and of each other, considering that the three attesting
witnesses must appear before the notary public to acknowledge the same. As the third
witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with
the legal requirement of having at least three attesting witnesses even if the notary public
acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath
rather than as attesting the execution of the instrument.

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.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita
N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed
in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the will before a notary public.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain
that of the appellant that the last will and testament in question was not executed in
accordance with law. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and
"before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently,
if the third witness were the notary public himself, he would have to avow assent, or admit
his having signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain would be sanctioning a sheer
absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would
be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act
as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals,
64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.

911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132
A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledgingwitnesses. He the notary public
acted not only as attesting witness but also acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will or file another with the office of the Clerk of Court.
[Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before the notary public
for or that purpose. In the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate
of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby
set aside.

vs.
DOA MATEA LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the
documents in the Visayan dialect, marked Exhibits D and E, as 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, Da. 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. The appeal was made directly to this Court because the
value of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary
capacity and that the dispositions were procured through undue influence. These grounds
were abandoned at the hearing in the court below, where the issue was concentrated into
three specific questions: (1) whether the testament of 1950 was executed by the testatrix in
the presence of the instrumental witnesses; (2) whether the acknowledgment clause was
signed and the notarial seal affixed by the notary without the presence of the testatrix and
the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective.
These questions are the same ones presented to us for resolution.

Cost against the appellee.

The contestant argues that the Court below erred in refusing credence to her witnesses
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 the deceased that he had brought the "testamento" and urge
her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could
not go, because she was not feeling well; and that upon Yap's insistence that the will had to
be signed in the attorney's office and not elsewhere, the deceased took the paper and
signed it in the presence of Yap alone, and returned it with the statement that no one would
question it because the property involved was exclusively hers.

G.R. No. L-7179

June 30, 1955

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitionerappellee,

Our examination of the testimony on record discloses no grounds for reversing the trial
Court's rejection of the improbable story of the witnesses. It is squarely contradicted by the
concordant testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and
his wife Gloria Montinola, who asserted under oath that the testament was executed by
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 is highly unlikely, and contrary to
usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady then
over 80 years old, should leave her own house in order to execute her will, when all three
witnesses could have easily repaired thither for the purpose. Moreover, the crossexamination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim
to have heard the word "testamento" for the first time when Yap used it; and they claimed

ability to recall that word four years later, despite the fact that the term meant nothing to
either. It is well known that what is to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive 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 give satisfactory 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
been separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen. Later, on
redirect examination, Allado sought to cure his testimony by claiming that he was upstairs in
a room where the servants used to eat when he heard Yap converse with his mistress; but
this correction is unavailing, since it was plainly induced by two highly leading questions
from contestant's counsel that had been previously ruled out by the trial 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 instrumental witnesses urged
upon us by the contestant-appellant, concerning the presence or absence of Aurelio
Montinola at the signing of the testament or of the codicil, and the identity of the person who
inserted the date therein, are not material and are largely imaginary, since the witness Mrs.
Tabiana confessed inability to remember all the details of the transaction. Neither are we
impressed by the argument that the use of some Spanish terms in the codicil and testament
(likelegado, partes iguales, plena propiedad) is proof that its contents were not understood
by the testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the
certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E.
Unlike the testament, this codicil was executed after the enactment of the new Civil Code,
and, therefore, had to be acknowledged before a notary public (Art. 806). Now, 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 wellestablished phenomenon, the tendency of the mind, in recalling past events, to substitute
the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, 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. Unlike the Code of 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. 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 the case before us. 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 can
not be said to violate the rule that testaments should be completed without interruption
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac
tempore in eadem loco", and no reversible error was committed by the Court in so holding. 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.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C.J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and
Concepcion, JJ.,concur.

ORTEGA VS VALMONTE, GR NO. 157451

PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of showing
why it should not be allowed. In the present case, petitioner has failed to discharge this
burden satisfactorily. For this reason, the Court cannot attribute any reversible error on the
part of the appellate tribunal that allowed the probate of the will.
The Case
Before the Court is a Petition for Review[1] under Rule 45 of the Rules of Court, seeking to
reverse and set aside the December 12, 2002 Decision[2] and the March 7, 2003
Resolution[3] of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed Decision
disposed as follows:
WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED and SET
ASIDE. In its place judgment is rendered approving and allowing probate to the said last will
and testament of Placido Valmonte and ordering the issuance of letters testamentary to the
petitioner Josefina Valmonte. Let this case be remanded to the court a quo for further and
concomitant proceedings.[4]

The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:
x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United States and at the age
of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded bliss,
Placido died on October 8, 1984 of a cause written down as COR PULMONALE.
Placido executed a notarial last will and testament written in English and consisting of two
(2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and was
signed at the end or bottom of that page by the testator and on the left hand margin by the
three instrumental witnesses. The second page contains the continuation of the attestation
clause and the acknowledgment, and was signed by the witnesses at the end of the
attestation clause and again on the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident
of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of sound and
disposing mind and memory, do hereby declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said Church and that a suitable monument to be
erected and provided my by executrix (wife) to perpetuate my memory in the minds of my
family and friends;
2.
I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which belongs to me as [co-owner]:
a.
Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro
Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, MetroManila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having
share and share alike;
b.
2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street, Makati,
Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, Metro-Manila, jointly
in the name of my deceased sister, Ciriaca Valmonte and myself as co-owners, share and
share alike or equal co-owners thereof;
3.
All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;
4.
I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon
City, Philippines.

The allowance to probate of this will was opposed by Leticia on the grounds that:
1.
found in the USA;

Petitioner failed to allege all assets of the testator, especially those

2.
Petitioner failed to state the names, ages, and residences of the heirs of
the testator; or to give them proper notice pursuant to law;
3.
Will was not executed and attested as required by law and legal solemnities and
formalities were not complied with;
4.
Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;
5.

Will was executed under duress, or the influence of fear or threats;

6.
Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or
7.
Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;

and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
At the hearing, the petitioner Josefina testified and called as witnesses the notary public Atty.
Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses
spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the
oppositor Leticia and her daughter Mary Jane Ortega testified.
According to Josefina after her marriage with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to Manila every month to get his $366.00
monthly pension and stayed at the said Makati residence. There were times though when to
shave off on expenses, the testator would travel alone. And it was in one of his travels by his
lonesome self when the notarial will was made. The will was witnessed by the spouses
Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado. Josefina
said she had no knowledge of the existence of the last will and testament of her husband,
but just serendipitously found it in his attache case after his death. It was only then that she
learned that the testator bequeathed to her his properties and she was named the executrix
in the said will. To her estimate, the value of property both real and personal left by the
testator is worth more or less P100,000.00. Josefina declared too that the testator never
suffered mental infirmity because despite his old age he went alone to the market which is
two to three kilometers from their home cooked and cleaned the kitchen and sometimes if
she could not accompany him, even traveled to Manila alone to claim his monthly pension.

Josefina also asserts that her husband was in good health and that he was hospitalized only
because of a cold but which eventually resulted in his death.

It then found these grounds extant and proven, and accordingly disallowed probate.[5]
Ruling of the Court of Appeals

Notary Public Floro Sarmiento, the notary public who notarized the testators will, testified
that it was in the first week of June 1983 when the testator together with the three witnesses
of the will went to his house cum law office and requested him to prepare his last will and
testament. After the testator instructed him on the terms and dispositions he wanted on the
will, the notary public told them to come back on June 15, 1983 to give him time to prepare
it. After he had prepared the will the notary public kept it safely hidden and locked in his
drawer. The testator and his witnesses returned on the appointed date but the notary public
was out of town so they were instructed by his wife to come back on August 9, 1983, and
which they did. Before the testator and his witnesses signed the prepared will, the notary
public explained to them each and every term thereof in Ilocano, a dialect which the testator
spoke and understood. He likewise explained that though it appears that the will was signed
by the testator and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually on August 9, 1983.
He reasoned that he no longer changed the typewritten date of June 15, 1983 because he
did not like the document to appear dirty. The notary public also testified that to his
observation the testator was physically and mentally capable at the time he affixed his
signature on the will.
The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at
GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro
Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983 for
the execution of the will but were asked to come back instead on August 9, 1983 because of
the absence of the notary public; that the testator executed the will in question in their
presence while he was of sound and disposing mind and that he was strong and in good
health; that the contents of the will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and signed the will in the presence
of the testator and of each other. And that during the execution, the testators wife, Josefina
was not with them.
The oppositor Leticia declared that Josefina should not inherit alone because aside from her
there are other children from the siblings of Placido who are just as entitled to inherit from
him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of
sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati
residence and asked Leticias family to live with him and they took care of him. During that
time, the testators physical and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a
fancy and wanted to marry.
Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely:
1.
Non-compliance with the legal solemnities and formalities in the execution and
attestation of the will; and
2.
Mental incapacity of the testator at the time of the execution of the will as he was then
in an advanced state of senility

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
probate. The CA upheld the credibility of the notary public and the subscribing witnesses
who had acknowledged the due execution of the will. Moreover, it held that the testator had
testamentary capacity at the time of the execution of the will. It added that his sexual
exhibitionism and unhygienic, crude and impolite ways[6] did not make him a person of
unsound mind.
Hence, this Petition.[7]
Issues
Petitioner raises the following issues for our consideration:
I.
Whether or not the findings of the probate court are entitled to great respect.
II.
Whether or not the signature of Placido Valmonte in the subject will was procured by fraud or
trickery, and that Placido Valmonte never intended that the instrument should be his last will
and testament.
III.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will.[8]

In short, petitioner assails the CAs allowance of the probate of the will of Placido Valmonte.

This Courts Ruling

The Petition has no merit.

Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for Review
under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the evidence
presented during the trial may be examined and the factual matters resolved by this Court
when, as in the instant case, the findings of fact of the appellate court differ from those of
the trial court.[9]

The fact that public policy favors the probate of a will does not necessarily mean that every
will presented for probate should be allowed. The law lays down the procedures and
requisites that must be satisfied for the probate of a will.[10] Verily, Article 839 of the Civil
Code states the instances when a will may be disallowed, as follows:
Article 839. The will shall be disallowed in any of the following cases:
(1)

If the formalities required by law have not been complied with;

(2)
If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
(3)

If it was executed through force or under duress, or the influence of fear, or threats;

(4)
If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5)

If the signature of the testator was procured by fraud;

of the will only upon a showing of credible evidence of fraud.[15] Unfortunately in this case,
other than the self-serving allegations of petitioner, no evidence of fraud was ever
presented.
It is a settled doctrine that the omission of some relatives does not affect the due execution
of a will.[16] That the testator was tricked into signing it was not sufficiently established by
the fact that he had instituted his wife, who was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family, who were the ones who had taken the
cudgels of taking care of [the testator] in his twilight years.[17]
Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing
on the will does not invalidate the document, because the law does not even require that a
[notarial] will x x x be executed and acknowledged on the same occasion.[18] More
important, the will must be subscribed by the testator, as well as by three or more credible
witnesses who must also attest to it in the presence of the testator and of one another.[19]
Furthermore, the testator and the witnesses must acknowledge the will before a notary
public.[20] In any event, we agree with the CA that the variance in the dates of the will as to
its supposed execution and attestation was satisfactorily and persuasively explained by the
notary public and the instrumental witnesses.[21]

(6)
If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25, 1985,
October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are reproduced
respectively as follows:

In the present case, petitioner assails the validity of Placido Valmontes will by imputing fraud
in its execution and challenging the testators state of mind at the time.

Atty. Floro Sarmiento:

Existence of Fraud in the

Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of the will,
but maintains that the circumstances surrounding it are indicative of the existence of fraud.
Particularly, she alleges that respondent, who is the testators wife and sole beneficiary,
conspired with the notary public and the three attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of the execution and the
attestation of the will.
Petitioner contends that it was highly dubious for a woman at the prime of her young life [to]
almost immediately plunge into marriage with a man who [was] thrice her age x x x and who
happened to be [a] Fil-American pensionado,[11] thus casting doubt on the intention of
respondent in seeking the probate of the will. Moreover, it supposedly defies human reason,
logic and common experience[12] for an old man with a severe psychological condition to
have willingly signed a last will and testament.
We are not convinced. Fraud is a trick, secret device, false statement, or pretense, by which
the subject of it is cheated. It may be of such character that the testator is misled or
deceived as to the nature or contents of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception regarding which the testator is led to
make a certain will which, but for the fraud, he would not have made.[13]
We stress that the party challenging the will bears the burden of proving the existence of
fraud at the time of its execution.[14] The burden to show otherwise shifts to the proponent

Q You typed this document exhibit C, specifying the date June 15 when the testator and his
witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.
xxxxxxxxx
Q The document has been acknowledged on August 9, 1983 as per acknowledgement
appearing therein. Was this the actual date when the document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses affixed their respective
signature on the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date appearing on the body of the
document as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in my own handwriting
August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)
Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us this
discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses; that
was first week of June and Atty. Sarmiento told us to return on the 15th of June but when we
returned, Atty. Sarmiento was not there.

In determining the capacity of the testator to make a will, the Civil Code gives the following
guidelines:
Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?
A We returned on the 9th of August and there we signed.

Article 799. To be of sound mind, it is not necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.

Q This August 9, 1983 where you said it is there where you signed, who were your
companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.

Felisa Gomez on cross-examination:

Article 800. The law presumes that every person is of sound mind, in the absence of proof to
the contrary.

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
xxxxxxxxx
A The reason why we went there three times is that, the first week of June was out first time.
We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will and
testament. After that what they have talked what will be placed in the testament, what Atty.
Sarmiento said was that he will go back on the 15th of June. When we returned on June 15,
Atty. Sarmiento was not there so we were not able to sign it, the will. That is why, for the
third time we went there on August 9 and that was the time we affixed our signature. (tsn,
October 13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)[22]
Notably, petitioner failed to substantiate her claim of a grand conspiracy in the commission
of a fraud. There was no showing that the witnesses of the proponent stood to receive any
benefit from the allowance of the will. The testimonies of the three subscribing witnesses
and the notary are credible evidence of its due execution.[23] Their testimony favoring it and
the finding that it was executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives.[24]

Capacity to Make a Will

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid interval.

According to Article 799, the three things that the testator must have the ability to know to
be considered of sound mind are as follows: (1) the nature of the estate to be disposed of,
(2) the proper objects of the testators bounty, and (3) the character of the testamentary act.
Applying this test to the present case, we find that the appellate court was correct in holding
that Placido had testamentary capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even their locations. As
regards the proper objects of his bounty, it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of some relatives from the will did not
affect its formal validity. There being no showing of fraud in its execution, intent in its
disposition becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,[25] which held thus:
"Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind."[26]

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the Court of
Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.

Presented for resolution by this Court in the present petition for review on certiorari is the
issue of whether or not the attestation clause contained in the last will and testament of the
late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809,
of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at his
residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer,
Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that
last will. 1 It was declared therein, among other things, that the testator was leaving by way
of legacies and devises his real and personal properties to Presentacion Gaviola, Angel
Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of
whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was P24,000.00, and he was so appointed by
the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment
of a special administrator for his estate. 5

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
REGALADO, J.:

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV
of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on
June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until
the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as
oppositors and objected to the allowance of the testator's will on the ground that on the
alleged date of its execution, the testator was already in the poor state of health such that
he could not have possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public
Atty. Filoteo Manigos, testified that the testator executed the will in question in their
presence while he was of sound and disposing mind and that, contrary to the assertions of
the oppositors, Mateo Caballero was in good health and was not unduly influenced in any
way in the execution of his will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the
last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors
cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the
filing of the original petition now marked Exhibit "D" clearly underscores
the fact that this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo Caballero
in Exhibit "C" examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the examination of this
signature of Mateo Caballero in Exhibit "C", nothing came out of it because
they abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with
all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is
null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing
the will in their presence and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may
be considered as having substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the attestation clause which the
oppositors claim to be defective is "we do certify that the testament was
read by him and the attestator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the acknowledgment,

each page numbered correlatively in letters of the upper part of each page,
as his Last Will and Testament, and he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand
margin in the presence of the said testator and in the presence of each
and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will "in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely or ideally
perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the
same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a manner not
in accord with the law and settled jurisprudence on the matter and are now questioning once
more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our resolution
of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with
the formalities prescribed by law, to control to a certain degree the disposition of his estate
after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute. 14 the first kind is the ordinary or attested will, the execution of which is governed
by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.

The attestation should state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will
is written is to safeguard against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages; 23 whereas the subscription of
the signature of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses. 24

If the attestation clause is in a language not known to the witness, it shall

be interpreted to them.

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. 25 The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure the
authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need
be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the
will as it would be possible and easy to add the clause on a subsequent occasion in the
absence of the testator and its witnesses. 28

In addition, the ordinary will must be acknowledged before a notary public by a testator and
the attesting witness.15 hence it is likewise known as notarial will. Where the attestator is
deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will
should be read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of will is that they
should be in writing and must have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause likewise
need not even be known to the attesting witnesses. 18 The last paragraph of Article 805
merely requires that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the
execution the same. 19 It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed. 20 It is made for
the purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will, 22 should state (1) the number of the pages used upon
which the will is written; (2) that the testator signed, or expressly caused another to sign, the
will and every page thereof in the presence of the attesting witnesses; and (3) that
theattesting witnesses witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in the presence of
the testator and of one another.

In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on
the law on wills in this Project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator.
The attestation clause in question, on the other hand, is recited in the English language and
is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the
proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered correlatively
in the letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the presence of
the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to
the will in the presence of the testator and of one another. "Attestation" and "subscription"
differ in meaning. Attestation is the act of senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of the testator exists as
a fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the
express requirements of the third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting witnesses the testator sign the
will and all its pages in their presence and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on the spaces 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." On the other hand, although the words "in the presence of the testator and in
the presence of each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words "he has signed
the same and every page thereof, on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final logical analysis , is the statement that
the witnesses signed the will and every page thereof in the presence of the testator and of
one another.
It is our considered view that the absence of that statement required by law is a fatal defect
or imperfection which must necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the application of the

substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will invalid
if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis
supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and
at the left margin of each page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed their respective signatures in
the presence of the testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed signed, but it does
not prove that the attesting witnesses did subscribe to the will in the presence of the testator
and of each other. The execution of a will is supposed to be one act so that where the
testator and the witnesses sign on various days or occasions and in various combinations,
the will cannot be stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases with
similar questions:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be
with respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of
proving the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the
testator and of each other. 35 In such a situation, the defect is not only in the form or
language of the attestation clause but the total absence of a specific element required by

Article 805 to be specifically stated in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is no plausible way by which we can
read into the questioned attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator of the will and all of
its pages and that said instrumental witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on
by respondents since it presupposes that the defects in the attestation clause can be cured
or supplied by the text of the will or a consideration of matters apparent therefrom which
would provide the data not expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts may
be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views
as to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code
of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will, hence
when an interpretation already given assures such ends, any other interpretation whatsoever
that adds nothing but demands more requisites entirely unnecessary, useless and frustrative
of the testator's last will, must be disregarded. The subsequent cases of Avera vs.
Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39Pecson vs. Coronel, 40 Fernandez vs. Vergel
de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of

Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of

Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator. The will in question was disallowed, with
these reasons therefor:
In support of their argument on the assignment of error above-mentioned,
appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing
with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil.,
841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee
counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46
Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible, conciliate
the last two decisions cited by opposing counsel, namely, those of Sano vs.
Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate
the fact that the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere exhibition of the
will, if it is not stated therein. It was also held that the fact that the testator
and the witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on the
document itself, and the omission to state such evident facts does not
invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do
they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points
may be mentioned. In the first place, the Mojal, decision was concurred in
by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven

members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December, 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The
law of the case is here found in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that
"No will . . .shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shallstate the number of sheets or pages
used, upon which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634 provides
that "The will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve vs.
Mojal and Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that
once more appeared to revive the seeming diversity of views that was earlier threshed out
therein. The cases of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated
in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809
of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is,
in accordance with the formalities prescribed by Section 618 of the Code of

Civil Procedure as amended by Act No. 2645. The Supreme Court of the
Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the
Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap,
G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs.
Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically
gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To turn
this attitude into a legislative declaration and to attain the main objective
of the proposed Code in the liberalization of the manner of executing wills,
article 829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested
in substantial compliance with all the requirements of
article 829."65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into its
confines, to ascertain its meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied
by an examination of the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of
the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will
and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly
proceed with the settlement of the estate of the said decedent.

SO ORDERED.