G.R. No.

L-13431

November 12, 1919

In
re
will
of
Ana
Abangan.
GERTRUDIS
ABANGAN, executrix-appellee,
vs. ANASTACIA ABANGAN, ET AL., opponentsappellants.
Filemon
Sotto
M. Jesus Cuenco for appellee.

for

appellants.

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.chanroblesvirtualawlibrary chanrobles virtual
law library
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.chanroblesvirtualawlibrary chanrobles virtual law
library
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.chanroblesvirtualawlibrary chanrobles
virtual
law library

disappears because the removal of this single sheet,

although
unnumbered,
cannot
be
hidden.chanroblesvirtualawlibrary chanrobles virtual law
library

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

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

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.chanroblesvirtualawlibrary chanrobles virtual law
library
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.chanroblesvirtualawlibrary chanrobles virtual law
library

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.chanroblesvirtualawlibrary chanrobles virtual
law library
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.chanroblesvirtualawlibrary chanrobles virtual law
library
For the foregoing considerations, the judgment appealed
from is hereby affirmed with costs against the appellants.
So ordered.chanroblesvirtualawlibrary chanrobles virtual
law library
Arellano, C.J., Torres, Johnson, Araullo, Street and
Malcolm, JJ., concur.
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, Petitioner-Appellant, vs. FAUSTINO
CABACUNGAN, ET AL., opponents-appellees.
A.
M.
Jimenez
Ramon Querubin for appellees.

for

appellant.

MORELAND, J. :chanrobles virtual law library

This case is closely connected with the case of Faustino
Cabacungan vs. Pedro Barut and another, No.
6284, 1 just decided by this court, wherein there was an
application for the probate of an alleged last will and
testament of the same person the probate of whose will is
involved
in
this
suit.chanroblesvirtualawlibrary chanrobles virtual law
library
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.chanroblesvirtualawlibrary chanrobles
virtual
law library
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.chanroblesvirtualawlibrary chanrobles
virtual
law library
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.chanroblesvirtualawlibrary chanrobles
virtual
law library
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.chanroblesvirtualawlibrary chanrobles virtual law
library
The court seems , by inference at least, to have had in
mind that under the law relating to the execution of a will
it is necessary that the person who signs the name of the
testatrix must afterwards sign his own name; and that, in
view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her
name, being, from its appearance, not the same
handwriting as that constituting the name of the testatrix,

the will is accordingly invalid, such fact indicating that

the person who signed the name of the testatrix failed to
sign his own. We do not believe that this contention can
be sustained. Section 618 of the Code of Civil Procedure
reads as follows:
No will, except as provided in the preceding section,
shall be valid to pass any estate, real or personal, nor
charge or effect the same, unless it be in writing and
signed by the testator, or by the testator's name written by
some other person in his presence, and by his expenses
direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of
each. . . .
This is the important part of the section under the terms
of which the court holds that the person who signs the
name of the testator for him must also sign his own name
The remainder of the section reads:
The attestation shall state the fact that the testator signed
the will, or caused it to be signed by some other person,
at his express direction, in the presence of three
witnesses, and that they attested and subscribed it in his
presence and in the presence of each other. But the
absence of such form of attestation shall not render the
will invalid if it is proven that the will was in fact signed
and attested as in this section provided.
From these provisions it is entirely clear that, with
respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix
signs his own or not. The important thing is that it clearly
appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and
that they attested and subscribed it in her presence and in
the presence of each other. That is all the statute requires.

It may be wise as a practical matter that the one who

signs the testator's name signs also his own; but that it is
not essential to the validity of the will. Whether one
parson or another signed the name of the testatrix in this
case is absolutely unimportant so far as the validity of her
will is concerned. The plain wording of the statute shows
that the requirement laid down by the trial court, if it did
lay down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute
relating to the execution of wills do not in any sense
require such a provision. From the standpoint of language
it is an impossibility to draw from the words of the law
the inference that the persons who signs the name of the
testator must sign his own name also. The law requires
only
three
witnesses
to
a
will,
not
four.chanroblesvirtualawlibrary chanrobles virtual law
library
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.chanroblesvirtualawlibrary chanrobles virtual law
library
There have been cited three cases which it is alleged are
in opposition to the doctrine which we have herein laid
down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex
parte Arcenas
(4
Phil.
Rep.,
700),
and
Guison vs. Concepcion (5 Phil. Rep., 551). Not one of
these cases is in point. The headnote in the case last
above stated gives an indication of what all of cases are
and the question involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of
writing her name he wrote his own upon the will. Held,
That the will was not duly executed.
All of the above cases are precisely of this character.
Every one of them was a case in which the person who
signed the will for the testator wrote his own name to the
will instead of writing that of the testator, so that the
testator's name nowhere appeared attached to the will as
the one who executed it. The case of Ex parte Arcenas
contains the following paragraph:
Where a testator does not know, or is unable for any
reason, to sign the will himself, it shall be signed in the
following manner: "John Doe, by the testator, Richard
Roe;" or in this form: "By the testator. John Doe, Richard
Roe." All this must be written by the witness signing at
the request of the testator.
The only question for decision in that case, as we have
before stated, was presented by the fact that the person

who was authorized to sign the name of the testator to the

will actually failed to sign such name but instead
signed his own thereto. The decision in that case related
only
to
that
question.chanroblesvirtualawlibrary chanrobles
virtual
law library
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.chanroblesvirtualawlibrarychanrobles
virtual
law library
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.
G.R. No. L-20475 March 19, 1924
In re will of TAN DIUCO, deceased. MAMERTA
BASE, petitioner-appellant.
C.K. Langleon for petitioner and appellant.
ARAULLO, C.J.: chanrobles virtual law library

On March 3, 1921, Mamerta Base instituted this

proceeding in the Court of First Instance of Leyte for the
probate of the will, Exhibit A, executed, according to her,
by the Chinaman Tan Diuco, a resident of the
municipality of Malitbog of said province, who died on
December 8, 1920. That court denied the probate of the
will on November 2, 1922, and the petitioner brought the
case on appeal to this court, alleging that the lower court
erred in holding that said will was not signed by three
instrumental witnesses and in not allowing it to
probate.chanroblesvirtualawlibrary chanrobles virtual law
library

We, the undersigned witnesses to the forgoing will, do

hereby state that the testator signed this will and each of
its sheets in the presence of all and each of us, and we
and each of us likewise did sign this will and all of its
sheets in the presence of the testator and each of us,
witnesses.

After a hearing on the petition, the Court of First Instance

entered the order appealed from, in which it is found that
said will was executed with all the solemnities prescribed
by Act No. 2645, except that it was not signed by three
instrumental witnesses beside the signature of the testator
and before the attestation clause, and this fact is the
ground
upon
which
the
petition
was
denied.chanroblesvirtualawlibrary chanrobles virtual law
library

Section 618 of the Code of Civil Procedure, as amended

by Act No. 2645, provides, indeed, among the necessary
requirements before a will can be probated, that it be
attested and signed by three or more credible witnesses in
the presence of the testator and of each other. And said
section, as amended, further provides as follows:

The document in question, Exhibit A, appears to have

been signed by Simplicio Sala by order of the testator,
whose name is before the said signature, by reason of the
latter's incapacity on account of his weakness and the
trembling of his hand, the testator also stating that he
directed said Simplicio Sala to sign it in his name and in
the presence of three witnesses who also signed with him
at the bottom of said document, and on the left margin of
each of its three pages correlatively numbered in letters
by Sala in the name of the testator Tan Diuco and by the
witnesses therein mentioned, named Pablo Maturan,
Ladislao Fenomeno, and Enrique Pearedondo. After the
signature of the testator, Tan Diuco by Simplicio Sala, the
following paragraph appears:

"TAN
By
"SIMPLICIO
"LADISLAO
"PABLO
"ENRIQUE PEAREDONDO"

DIUCO
SALA
FENOMENO
MATURAN

* * * The testator or the person requested by him to write

his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, on
the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or
pages used, upon which the will is written, and that fact
that the testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other.
Instrumental witness, as defined by Escriche in
his Diccionario
Razonado
de
Legislacion
y
Jurisprudencia, volume 4, page 1115, is one who takes
part in the execution of an instrument or

writing.chanroblesvirtualawlibrary chanrobles virtual law

library
At present and under the laws now in force, particularly
Act No. 2645 amendatory to said section 618 of the Code
of Civil Procedure, when a will is to be executed, the
testator draws or writes it personally or through another
person and signs it also personally, or if he is physically
incapacitated, as in the instant case, through another
person who may or may not be the one who prepared or
wrote the will, that is, the document constituting the
testator's last will and testament. The will having thus
been prepared and before it is signed by the testator or
the person acting in his stead, or the one directed by him
to sign it in his name, in which case the name of the
testator is written before that of the signer, as above
stated, in order that said document may have the
character of a valid will, the testator gathers three or
more credible witnesses and tells them that the contents
of said document is his will, without informing them of
its contents, and then the testator, or the person directed
by him to do so, signs it in the presence of the testator
and of each other, and the testator or the person acting in
his stead, as well as the three witnesses sign on the left
margin of each page or sheet, which must be numbered
correlatively in letters on the upper part of the page.
These witnesses are the witnesses, referred to in the
aforesaid law as instrumental witnesses, for the simple
reason that they took part in the execution of an
instrument or document known as will, their participation
being
limited
to
the
acts
aforementioned.chanroblesvirtualawlibrary chanrobles
virtual law library
In dealing with attestation, said section 618 of the Code
of Civil Procedure, as amended by Act No. 2645, does
not say that said witnesses must be different from those

who signed the attestation clause, for in the first part of

said section, after speaking of the signature of the testator
or the person signing in his place, it adds, "and attested
and subscribed by three or more credible witnesses in the
presence of the testator and of each other," from which it
clearly follows that the same witnesses who signed on the
left margin of each page of the document presented by
the testator to them as his will, must be the ones who
should sign the attestation clause, inasmuch as they alone
can certify the facts to be stated in said clause, for having
taken a direct part therein, as they saw the testator sign
the will, or the person requested by him to sign all the
sheets of the will, that is, the document constituting his
last will and testament, and affirm that it was signed
under his express direction in the presence of said
witnesses and that all the sheets thereof had also been
signed by them in the presence of said testator and of
each of them, as stated in the attestation clause of the will
of the deceased Tan Diuco, with the other details
appropriate
in
said
clause.chanroblesvirtualawlibrary chanrobles virtual law
library
Besides, as may be seen, the said three witnesses who
signed the attestation clause, did so also on the left
margin and beside the signature of the testator or of
Simplicio Sala who signed by order of the latter, and if
account is taken of the fact that these witnesses are
"instrumental" witnesses, as above demonstrated, and
they have made reference to their own signatures, as well
as that of the testator and of the person who signed by the
latter's order below the attestation clause, it is evident that
in the instant case, it is merely a matter of technicality
devoid of any importance as to the probate of the will
that said witnesses are called instrumental witnesses, as if
they were different from those who have to sign the
attestation clause, for all of them are but the same

witnesses; and, as this court held in the case of Abangan

vs. Abangan (40 Phil., 476), "The object of the
solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight
of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So
when a 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;" which doctrine must be applied in this case,
in view of the facts herein mentioned and what has been
above
demonstrated.chanroblesvirtualawlibrary chanrobles
virtual law library
For all of the foregoing, the order appealed from is
reversed, and the document, Exhibit A, presented by the
proponent as the last will and testament of the deceased
Tan Diuco is admitted to probate, without special finding
as to costs of both instances. So ordered.
EN
[G.R.

BANC
No.

MARIANO
ARCADIO

9150.

March

31,

1915.

LEANO, Petitioner-Appellant,
v.
LEAO,
objector-appellee.

Vicente

Llanes

for Appellant.

Severo

Hernando

for Appellee.

SYLLABUS

1. WILLS; SIGNATURE BY MARK. The right of a

testatrix to sign her will by mark, executed animo
testandi,
sustained.
2. ID., ID. The placing of a cross, by a testatrix,
opposite her name attached to an instrument purporting to
be her last will and testament is a sufficient compliance
with the requirements of section 618 of the Code of Civil
Procedure as to the form and manner in which such
instruments should be signed.

DECISION

CARSON, J. :

doctrine

just

announced.)

The trial judge was of contrary opinion, and declined to

admit the instrument to probate as the last will and
testament of the decedent. We are of opinion. however,
that the evidence of record satisfactorily establishes the
execution of that instrument as and for her last will and
testament in the manner and form prescribed by law.
The judgment entered in the court below should therefore
be reversed, without costs in this instance, and the record
remanded to the court below, where judgment will be
entered admitting the instrument in question to probate in
accordance with the prayer of the petitioner. So ordered.
Arellano, C.J.,

and

Araullo, J.,

concur.

We are of the opinion that the placing of the cross

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

The following is a copy of the evidence which appears of

record on this particular point, being a part of the
testimony of the said Isabeo Jena:
Q.
1641
Who first signed the will? chanrobles
virtual law library
A.
1641
I signed it first, and afterwards Aniceto
and the others.chanroblesvirtualawlibrary chanrobles
virtual law library
Q.
1641 Who were those others to whom you have
just referred? chanrobles virtual law library

Moreland, J., concurs in the result.

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

Civil
Procedure.chanroblesvirtualawlibrary chanrobles
virtual law library

EN BANC
G.R. No. 1641 January 19, 1906
GERMAN
vs. RICARDO
Appellees.

JABONETA,Plaintiff-Appellant,
GUSTILO, ET AL.,Defendants-

Ledesma, Sumulong and Quintos for

Del-Pan, Ortigas and Fisher for appellees.

A.
1641 After the witness Aniceto signed the will I
left the house, because I was in a hurry, and at the
moment when I was leaving I saw Julio Javellana with
the pen in his hand in position ready to sign ( en actitud
de firmar). I believe he signed, because he was at the
table. . . .chanroblesvirtualawlibrary chanrobles virtual
law library

appellant.

CARSON, J.:
In these proceedings probate was denied the last will and
testament of Macario Jaboneta, deceased, because the
lower court was of the opinion from the evidence
adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the
presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of

Q.
1641
State positively whether Julio Javellana
did or did not sign as a witness to the
will.chanroblesvirtualawlibrary chanrobles virtual law
library
A.
1641
I can't say certainly, because as I was
leaving the house I saw Julio Javellana with the pen in his
hand, in position ready to sign. I believe he
signed.chanroblesvirtualawlibrary chanrobles virtual law
library

Q.
1641
Why do you believe Julio Javellana
signed? chanrobles virtual law library
A.
1641 Because he had the pen in his hand, which
was resting on the paper, though I did not actually see
him sign.chanroblesvirtualawlibrary chanrobles virtual
law library
Q.
1641
Explain this contradictory
statement.chanroblesvirtualawlibrary chanrobles virtual
law library
A.
1641 After I signed I asked permission to leave,
because I was in a hurry, and while I was leaving Julio
had already taken the pen in his hand, as it appeared, for
the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand
with the pen resting on the will, moving it as if for the
purpose of signing.chanroblesvirtualawlibrary chanrobles
virtual law library
Q.
1641 State positively whether Julio moved his
hand with the pen as if for the purpose of signing, or
whether he was signing chanrobles virtual law library
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness

does not seem to have been questioned by any of the
parties to the proceedings, but the court, nevertheless,
found the following facts:
On the 26th day of December, 1901, Macario Jaboneta
executed under the following circumstances the
document in question, which has been presented for
probate as his will:chanrobles virtual law library

Being in the house of Arcadio Jarandilla, in Jaro, in this

province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena,
and Isabelo Jena as witnesses, executed the said
document as his will. They were all together, and were in
the room where Jaboneta was, and were present when he
signed the document, Isabelo Jena signing afterwards as a
witness, at his request, and in his presence and in the
presence of the other two witnesses. Aniceto Jalbuena
then signed as a witness in the presence of the testator,
and in the presence of the other two persons who signed
as witnesses. At that moment Isabelo Jena, being in a
hurry to leave, took his hat and left the room. As he was
leaving the house Julio Javellana took the pen in his hand
and put himself in position to sign the will as a witness,
but did not sign in the presence of Isabelo Jena; but
nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the
testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of
facts as holds that the signature of Javellana was not
signed in the presence of Jena, in compliance with the
provisions of section 618 of the Code of Civil Procedure.
The fact that Jena was still in the room when he saw
Javellana moving his hand and pen in the act of affixing
his signature to the will, taken together with the
testimony of the remaining witnesses which shows that
Javellana did in fact there and then sign his name to the
will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of
leaving, and that his back was turned while a portion of
the name of the witness was being written, is of no
importance. He, with the other witnesses and the testator,
had assembled for the purpose of executing the
testament, and were together in the same room for that
purpose, and at the moment when the witness Javellana

signed the document he was actually and physically

present and in such position with relation to Javellana
that he could see everything which took place by merely
casting his eyes in the proper direction, and without any
physical obstruction to prevent his doing so, therefore we
are of opinion that the document was in fact signed
before he finally left the room.
The purpose of a statutory requirement that the witness
sign in the presence of the testator is said to be that the
testator may have ocular evidence of the identity of the
instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p.
599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was
held that it is sufficient if the witnesses are together for
the purpose of witnessing the execution of the will, and in
a position to actually see the testator write, if they choose
to do so; and there are many cases which lay down the
rule that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have
seen him sign, considering his mental and physical
condition and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)chanrobles virtual
law library
The principles on which these cases rest and the tests of
presence as between the testator and the witnesses are
equally applicable in determining whether the witnesses
signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts
proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument
were complied with, and that the lower court erred in
denying probate to the will on the ground stated in the

ruling
appealed
from.chanroblesvirtualawlibrary chanrobles virtual law
library
We are of opinion from the evidence of record that the
instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should therefore
be
admitted
to
probate.chanroblesvirtualawlibrary chanrobles virtual law
library
The judgment of the trial court is reversed, without
especial condemnation of costs, and after twenty days the
record will be returned to the court form whence it came,
where the proper orders will be entered in conformance
herewith.
So
ordered.chanroblesvirtualawlibrary chanrobles
virtual
law library
Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.
G.R. No. L-3907

March 12, 1908

ROMAN ABAYA, petitioner-appellant,

vs.
DONATA ZALAMERO, respondent-appellee..
TORRES, J.:
On the 6th of August, Roman Abaya filed a petition with
the Court of First Instance of La Laguna, for the

allowance of the will executed by Juan Zalamero, a

resident of Pagsanhan, in said province, on the 29th of
October, 1905, and produced in court the said will, which
was written in Tagalog dialect. Donata Zalamero opposed
the petition, alleging that the will had been executed
under pressure and unlawful and improper influence on
the part of those who were to benefit thereby, and that it
had not been executed and signed in accordance with the
provisions of section 618 of the Code of Civil Procedure.
A day was appointed for the hearing and in the course of
the proceedings the witnesses offered by both parties
were examined; on the 10th of January, 1907, the court
refused to admit the will of said Juan Zalamero, as
requested by Roman Abaya; Abaya appealed from the
decision and moved for a new trial which motion has not
been finally acted upon by the court; for this reason the
petitioner, now before this court, still insists thereon for
the effects of the appeal which he had interposed, and has
submitted a certified copy of the proceedings to which
the assignment of errors presented by him refers.
Two points are presented. The first is, that Juan
Zalamero, while in life, executed his will on the 29th of
October, 1905, under lawful pressure and influence
exercised by those who were thereby benefited; and
second, that the said will was not executed and signed in
accordance with the provisions of section 618 of the
Code of Civil Procedure.
After an examination of the facts alleged and the
evidence adduced by both parties, and considering the
case according to the rules of common sense and sound
criticism, it must necessarily be admitted that the weight
and preponderance of the evidence prove in a conclusive
manner the authenticity and genuineness of the said will
as the real and true expression of the will of the testator,

Juan Zalamero, and for this reason the first point should
have been decided by the court below in a negative sense.
It was not expressly pretended that the said will should be
disallowed under the provisions of section 634 of the
Code of Civil Procedure, either because the testator was
insane or otherwise mentally incapable to execute such
instrument at the time of its execution, or because it was
procured by undue and improper pressure and influence
on the part of the beneficiaries; nor even if such request
had been made, could the nullity of the said will have
been judicially declared in view of the lack of satisfactory
proof of the presence of such circumstances. Therefore,
the court, in order to disallow the petition, had to
disregard them and rest the decision upon the allegation
that the will was not executed in accordance with the
provisions of section 618 of the Code of Civil Procedure.
Notwithstanding the reasons stated in the judgment
appealed from, it appears that the will in question was
executed with the requirements established by the law in
force, and that, therefore, the decision upon the second
point should be against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for
the reasons set forth by the testator and at his own
request, one of the witnesses to the will, Mariano
Zaguirre, wrote with his own hand the name and surname
of Juan Zalamero, the testator, and his presence, and that
the latter put a cross between them and a note stating that
what had been written before the name and surname of
the said Juan Zalamero, with the cross placed at the foot
thereof, was his testament and contained his last will as
stated by him when he directed the execution thereof in
the presence of the three witnesses who subscribed it in
his presence, and in the presence of each other.

It is true that the witness Mariano Zaguirre, who was

requested by the testator to write his name and surname
at the end of his will, did not affix his own signature
immediately below the name and surname of Juan
Zalamero and below the cross placed by the latter with
the words "by request of the testator Juan Zalamero;" but
in the said will are clearly stated the reason why it was
not signed by the testator himself as also the request he
made to the witness Zaguirre, and a repetition thereof
was not necessary; further, that this same witness, upon
being requested, wrote with his own hand the name and
surname of the testator, who afterwards placed the cross
between them, stating that it was his statement, all of
which was written immediately after the said name and
surname of the testator and the cross made by him, and
the same was subscribed by the three witnesses in the
manner provided by law.

the law, and that therefore it should be duly admitted in

order that it may produce all consequent legal effects, and
it is so ordered without any special ruling as to costs.

The essential requisites prescribed by the abovementioned section 618 of the law have been complied
with, namely, that three witnesses were present at the
execution of the will of Juan Zalamero at the date
mentioned therein; that they heard his statement that the
said instrument, written and drawn up under his direction,
contained his last will; that they saw and witnessed when,
at the express request of the testator, and under his
direction, the witness, Mariano Zaguirre, wrote at the
foot of the will the name and surname of Juan Zalamero,
and when the latter put the cross between his written
name and surname, each of the witnesses subscribing it at
the time and in the presence of each other.

SYLLABUS

For the reasons hereinbefore set forth it is our opinion

that the judgment appealed from should be reversed and
that it be declared, as we now do, that the will executed
by the late Juan Zalamero while in life, under date of the
29th of October, 1905, was executed in accordance with

Arellano, C.J., Mapa, Johnson, Carson, Willard, and

Tracey, JJ., concur.
EN
[G.R.

BANC
No.

L-5971.

February

27,

Valerio Fontanilla and Andres Asprer for Appellant.

Diaz

DECISION

1911.]

BEATRIZ NERA, ET AL., Plaintiffs-Appellees, v.

NARCISA
RIMANDO, Defendant-Appellant.

Anacleto

WHEN WH.L IS SIGNED. If one subscribing witness

to a will is shown to have been in an outer room at the
time when the testator and the other witnesses attach their
signatures to the instrument in an inner room, the will
would be held invalid the attaching of the said
signatures, under such circumstances, not being done "in
the presence" of the witness in the outer room.

for Appellees.

1. EXECUTION OF WILLS; POSITION OF

TESTATOR AND WITNESS WHEN WILL IS
SUBSCRIBED. The position of testator and of the
witnesses to a will, at the moment of the subscription by
each, must be such that they may see each other sign if
they
choose
to
do
so.
2. ID.; ID.; SIGNING IN THE PRESENCE OF EACH
OTHER. 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 whether at that moment existing conditions
and the position of the parties, with relation to each other,
were such that by merely casting their eyes in the proper
direction they could have seen each other sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM

CARSON, J.:

The only question raised by the evidence in this case as to

the due execution of the instrument propounded as a will
in the court below, is whether one of the subscribing
witnesses was present in the small room where it was
executed at the time when the testator and the other
subscribing witnesses attached their signatures; or
whether at that time he was outside, some eight or ten
feet away, in a large room connecting with the smaller
room by a doorway, across which was hung a curtain
which made it impossible for one in the outside room to
see the testator and the other subscribing witnesses in the
act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that
this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time
when they attached their signatures to the instrument, and
this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the
document to probate as the last will and testament of the
deceased.
The trial judge does not appear to have considered the
determination of this question of fact of vital importance
in the determination of this case, as he was of opinion
that under the doctrine laid down in the case of Jaboneta
v. Gustilo (5 Phil. Rep., 541) the alleged fact that one of

the subscribing witnesses was in the outer room when the

testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the
will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer
room at the time when the testator and the other
subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid
as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing
witnesses would necessarily have been impeded by the
curtain separating the inner from the outer one "at the
moment of inscription of each signature."cralaw
virtua1aw
library
In the case just cited, on which the trial court relied, we
held
that:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
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.

EN
[G.R.

BANC
No.

26545.

December

16,

1927.]

Testate Estate of Florencia R. G MATEO, ET AL.,

PERFECTO GABRIEL , Petitioner-Appellee, v. RITA
R. MATEO, ET AL., opponents-appellants.
R. Gonzalez Lloret, Carlos S. Basa, Thomas Cary
Welch and Camus, Delgado & Recto, forAppellants.
The

appellee

in

his

own

signatures on the left margin of the will deviates from the

horizontal direction apparently to avoid interfering with
that of one of the witnesses written on the same line, does
not mean that the testatrixs signature was placed there
after those of the witnesses had been written, when it
appears that the same tendency to rise is noted in the
testatrixs other signatures in the same will.
2. ID.; ID.; ID. Neither is the genuineness of the
signature questioned by the fact that the ink used in the
testatrixs signatures and those of the attesting witnesses
differ in color, intensity, even supposing that they all used
the same pen and ink, inasmuch as said difference may be
attributed to the varying degrees of pressure employed in
writing these signatures, especially when, as in this case,
the testatrix was a paralytic and wrote with her left hand;
or it may have been due to the fact that the pen was
dipped very lightly in the ink for the other signatures
while for the testatrixs signature it was dipped so as to
draw the ink from the bottom of the well.
3. ID.; ID.; UNIMPORTANT DETAILS. The
confusion noted in the testimony of the witnesses as to
whether or not some signed before the others, and
whether or not they did so with the same or different pen
and ink, is of no importance when, as in the present case,
the will was executed two years before the trial and the
witnesses cannot very well be expected to remember said
details.
4. ID.; ID.; PRETERITION OF SISTER. There is
nothing strange in that the testatrix instituted a niece of
hers as her sole heir, leaving nothing to her sister, when it
appears that said niece was taken in by the testatrix when
she was not yet 3 years of age and was not separated
from her up to the time of her death.

behalf.

SYLLABUS

DECISION

1. WILLS; GENUINENESS OF SIGNATURES;

INDICIA. The mere fact that one of the testatrixs

AVANCEA, C.J. :

10

The judgment appealed from allowed the will of

Florencia Mateo dated February 6, 1923, composed of
two used sheets to probate. The will appears to be signed
by the testatrix and three witnesses on the left margin of
each of the sheets, by the testatrix alone at the bottom,
and by the three witnesses after the attestation clause.
The testatrix died on August 13, 1925. Opposition to such
probate was filed by Rita Mateo, the testatrixs sister, and
by
other
relatives.
The three attesting witnesses to this will, testifying in this
case, declared that the signatures of the testatrix were
written in their presence and that they signed their names
in the presence of the testatrix and of each other.
The testatrix from girlhood knew how to sign her name
and did so with her right hand; but, as the right side of
her body later became paralyzed, she learned to sign with
her left hand and for many years thereafter, up to the time
of her death, she used to sign with that hand. Opponents
allege that Florencia Mateo did not sign this will.
There are three salient arguments among those adduced
by the opponents in support of their opposition.
The attesting witnesses testified that the testatrix signed
before they did. The signatures of the testatrix on the left
margin of the two sheets of the will are between the
signatures of the two witnesses Vidal Raoa and Julio
Gabriel, and below her surname is the signature of the
other witness Felicisimo Gabriel. The signatures of Vidal
Raoa and Julio Gabriel are on a level with each other,
while that of Felicisimo Gabriel is found a little lower
down. The testatrixs signatures start on the line with
Felicisimo Gabriels signature, but tend to rise and her
surname reaches a level with Julio Gabriels signature.
It is said that this direction of the testatrixs signature was
due to the fact that when it was written Felicisimo
Gabriels signature was already there, and so she had to
write her surname upwards in order to avoid interfering

with that of Felicisimo Gabriel, which would have been

the case had she continued on the horizontal line on
which she had written her first name. From this detail it is
pretended to draw the inference that the attesting
witnesses signed before the testatrix, contrary to their
testimony that she signed before they did. This deduction,
however, is unnecessary. It may be inferred with equal, if
not greater, logic that the testatrix signed before him, and
when it came to the witness Gabriels turn, he, finding the
space below the testatrixs signature free, signed his
name there. On the other hand, it may be noted that the
testatrixs other signature at the bottom of the will also
shows a more or less marked tendency to rise,
notwithstanding the fact that there was no signature with
which she might interfere if she continued to write in a
straight horizontal line. Furthermore, if, as the opposition
alleges, the testatrixs signature is not genuine and was
placed there by another person, it is strange that the latter
should have done so in such a way as to write it above
Gabriels signature while following the horizontal line,
when this could have been avoided by simply putting it a
little higher. And this may be attributed to carelessness in
the first case, but it cannot be so explained in the second.
Attention is also called to the apparently different kinds
of ink used by the testatrix in her signature and by the
attesting witnesses. Really an examination of these
signatures reveals a somewhat deeper intensity of ink in
the signature of the testatrix than in those of the attesting
witnesses. It is alleged that this circumstance cannot be
reconciled with the declaration of the attesting witnesses
that they used the same pen and ink as the testatrix. But,
only one of these witnesses declared this. The other one
was not sure of it and said that he did not perfectly
remember this detail. The third scarcely made reference
to this particular. At all events, this apparent difference in
ink may be merely due supposing that the same ink
and pen were used to the difference in pressure
employed in writing these signatures, as is reasonable to
suppose when we consider that the testatrix was a
paralytic and wrote with her left hand; or it may have
been due to the fact that the attesting witnesses dipped
lightly in the ink while the testatrix dipped the pen so as

to take up the ink from the bottom of the well. To bring

out this irregularity, the opposition presented the expert
Del Rosario who asserted, among other things, that the
signature of the testatrix is more recent than that of the
attesting witnesses. If this opinion is correct and if, as
alleged, the testatrixs signature is forged, it would mean
that the forgers, after having prepared the will and made
the witnesses sign, allowed some time to elapsed before
forging the testatrixs signature, which supposition is not
at all probable, nor has it been explained.
At all events, even admitting that there is a certain
question as to whether the attesting witnesses signed
before or after the testatrix, or whether or not they signed
with the same pen and ink, these are details of such trivial
importance, considering that this will was signed two
years before the date on which these witnesses gave their
testimony, that it is not proper to set aside the will for this
reason
alone.
The attesting witnesses to this will, who testified also as
witnesses at the trial of this case, showed themselves to
be intelligent and honest, one of them being a lawyer of
twelve years practice, and there is no reason to reject
their testimony, and to suppose that they were untruthful
in testifying, and that they falsified the will in question.
Lastly, attention is called to the unreasonableness of the
testatrix in not leaving anything to the principal
opponent, her sister Rita Mateo, and to her nephews and
nieces, to whom she had been so affectionate during life.
But as to the affectionate relations between the deceased
and the opponents, only the opponent Rita Mateo
testified, and she only stated that she was on good terms
with her sister during the latters lifetime; that the said
sister used to give her a sack or some gantas of rice, and,
at times, a little money; that she held all her nephews and
nieces in equal regard. But even supposing that this were
so, there is nothing strange in the testatrix having left
nothing to the opponents, or in her having left all of her
estate to the only heir instituted in her will, Tomasa
Mateo, who is also one of her nieces. And not only is it
not strange, but it seems reasonable, since, according to

11

the evidence of the opposition itself, Tomasa Mateo had

been taken in by the testatrix when the former was but 3
years old, and from then on up to the time of her death
had
never
been
separated
from
her.
The opposition presented Doctor Banks as expert. He
testified that the signatures of the testatrix in the will are
not genuine. The petitioner, on the other hand, presented
another expert, Pedro Serrano Laktao, who affirmed that
these signatures are genuine. But, over the testimony of
these experts, we have the categorical and positive
declaration of veracious witnesses who affirm that these
signatures were written by the testatrix herself.

The Court of First Instance of Albay, which tried the

case, overruled the objections to the will, and ordered the
probate thereof, holding that the document in controversy
was the last will and testament of Antonio Mojal,
executed in accordance with law. From this judgment the
opponents appeal, assigning error to the decree of the
court allowing the will to probate and overruling their
opposition.chanroblesvirtualawlibrary chanrobles virtual
law library

In the matter of the testate estate of Antonio Mojal,

deceased. FILOMENA NAYVE, petitioner-appellee,
vs. LEONA
MOJAL
and
LUCIANA
AGUILAR, opponents-appellants.

The will in question, Exhibit A, is composed of four

sheets with written matter on only side of each, that is,
four pages written on four sheets. The four sides or pages
containing written matter are paged "Pag. 1," "Pag. 2,"
"Pag. 3," "Pag. 4," successively. Each of the first two
sides or pages, which was issued, was signed by the
testator and the three witnesses on the margin, left side of
the reader. On the third page actually used, the signatures
of the three witnesses appear also on the margin, left side
of the reader, but the signature of the testator is not on the
margin, but about the middle of the page, at the end of
the will and before the attestation clause. On the fourth
page, the signatures of the witnesses do not appear on the
margin, but at the bottom of the attestation clause, it
being the signature of the testator that is on the margin,
left
side
of
the
reader.chanroblesvirtualawlibrary chanrobles virtual law
library

Manuel
M.
Calleja
Felix U. Calleja for appellee.

The defects attributed to the will are:chanrobles virtual

law library

The judgment appealed from is affirmed, with costs

against
the
appellants.
So
ordered.
Johnson, Villamor, Romualdez and Vill-Real concur.
EN BANC
G.R. No. L-21755

December 29, 1924

for

appellants.

ROMUALDEZ, J.:
This is a proceeding for the probate of the will of the
deceased Antonio Mojal instituted by his surviving
spouse, Filomena Nayve. The probate is opposed by
Leona Mojal and Luciana Aguilar, sister and niece,
respectively,
of
the
deceased.chanroblesvirtualawlibrary chanrobles virtual
law library

( a) The fact of not having been signed by the testator and

the witnesses on each and every sheet on the left margin;
( b) the fact of the sheets of the document not being
paged with letters; ( c) the fact that the attestation clause
does not state the number of sheets or pages actually used
of the will; and (d) the fact that the testator does not
appear to have signed all the sheets in the presence of the
three witnesses, and the latter to have attested and signed
all the sheets in the presence of the testator and of each

other.chanroblesvirtualawlibrary chanrobles virtual law

library
As to the signatures on the margin, it is true, as above
stated, that the third page actually used was signed by the
testator, not on the left margin, as it was by the witnesses,
but about the middle of the page and the end of the will;
and that the fourth page was signed by the witnesses, not
on the left margin, as it was by the testator, but about the
middle of the page and at the end of the attestation
clause.chanroblesvirtualawlibrary chanrobles virtual law
library
In this respect the holding of this court in the case
of Avera vs. Garcia and Rodriguez (42 Phil., 145), is
applicable, wherein the will in question was signed by the
testator and the witnesses, not on the left, but right,
margin. The rule laid down in that case is that the
document contained the necessary signatures on each
page, whereby each page of the will was authenticated
and safeguarded against any possible alteration. In that
case, the validity of the will was sustained, and
consequently
it
was
allowed
to
probate.chanroblesvirtualawlibrary chanrobles virtual law
library
Applying that doctrine to the instant case, we hold that,
as each and every page used of the will bears the
signatures of the testator and the witnesses, the fact that
said signatures do not all appear on the left margin of
each page does not detract from the validity of the
will.chanroblesvirtualawlibrary chanrobles virtual law
library
Turning to the second defect alleged, that is to say, the
fact that the sheets of the document are not paged with
letters, suffice it to cite the case of Unson vs. Abella (43
Phil., 494), where this court held that paging with Arabic
numerals and not with letters, as in the case before us, is
within the spirit of the law and is just as valid as paging
with letters.chanroblesvirtualawlibrary chanrobles virtual
law library

12

As to the proposition that the attestation clause does not

state the number of sheets or pages of the will, which is
the third defect assigned, it must be noted that the last
paragraph of the will here in question and the attestation
clause, coming next to it, are of the following tenor:

In witness whereof, I set my hand unto

this will here in the town of Camalig,
Albay, Philippine Islands, this 26th day of
November, nineteen hundred and eighteen,
composed of four sheets, including the
next:

ANTONIO
MOJAL

(Signed and declared by the testator Don

Antonio Mojal to be his last will and
testament in the presence of each of us,
and at the request of said testator Don
Antonio Mojal, we signed this will in the
presence of each other and of the testator.)

PEDRO
CARO
SILVERIO
MORCO
ZOILO
MASINAS
chanrobles virtual law library
As may be seen, the number of sheets is stated in said last
paragraph of the will. It is true that in the case of Uy

Coque vs. Navas L. Sioca (43 Phil., 405), it was held that
the attestation clause must state the number of sheets or
pages composing the will; but when, as in the case before
us, such fact, while it is not stated in the attestation
clause, appears at the end of the will proper, so that no
proof aliunde is necessary of the number of the sheets of
the will, then there can be no doubt that it complies with
the intention of the law that the number of sheets of
which the will is composed be shown by the document
itself, to prevent the number of the sheets of the will from
being
unduly
increased
or
decreased.chanroblesvirtualawlibrary chanrobles virtual
law library
With regard to the last defect pointed out, namely, that
the testator does not appear to have signed on all the
sheets of the will in the presence of the three witnesses,
and the latter to have attested and signed on all the sheets
in the presence of the testator and of each other, it must
be noted that in the attestation clause above set out it is
said that the testator signed the will "in the presence of
each of the witnesses" and the latter signed "in the
presence of each other and of the testator." So that, as to
whether the testator and the attesting witnesses saw each
other sign the will, such a requirement was clearly and
sufficiently complied with. What is not stated in this
clause is whether the testator and the witnesses signed all
the
sheets
of
the
will.chanroblesvirtualawlibrary chanrobles virtual law
library

exist.chanroblesvirtualawlibrary chanrobles virtual law

library
Therefore, as in the instant case the fact that the testator
and the witnesses signed each and every page of the will
is proven by the mere examination of the signatures in
the will, the omission to expressly state such evident fact
does not invalidate the will nor prevent its
probate.chanroblesvirtualawlibrary chanrobles virtual law
library
The order appealed from is affirmed with the costs
against
the
appellants.
So
ordered.chanroblesvirtualawlibrary chanrobles
virtual
law library
Johnson, Malcolm, and Villamor, JJ., concur. chanrobles
virtual law library
SECOND
[G.R.

No.

DIVISION
16008.

September

29,

1921.

In re will of the deceased Lucina Andrada. LUCILA

ARCE, Petitioner-Appellant.
J. Dorado, J. Tirol, and J. Hontiveros for Appellant.
SYLLABUS

The act of the testator and the witnesses seeing

reciprocally the signing of the will is one which cannot
be proven by the mere exhibition of the will unless it is
stated in the document. And this fact is expressly stated
in the attestation clause now before us. But the fact of the
testator and the witnesses having signed all the sheets of
the will may be proven by the mere examination of the
document, although it does not say anything about this,
and if that is the fact, as it is in the instant case, the
danger of fraud in this respect, which is what the law tries
to
avoid,
does
not

WILL; ATTESTING CLAUSE; FAILURE TO STATE

NUMBER OF SHEETS OR PAGES USED. A
document purporting to be the will of a deceased person
cannot be admitted to probate where the attesting clause
fails to state the number of sheets or pages in the will.

DECISION

13

STREET, J. :

Lucina Andrada died on June 5, 1919, in the Municipality

of Capiz, Province of Capiz; and soon thereafter a
petition was presented to the Court of First Instance of
Capiz by Lucila Arce to establish a document purporting
to be the last will and testament of the deceased. Upon
hearing the petition, his Honor, Judge Antonio Villareal,
declared that the document in question had not been
executed in conformity with the requirements of section
618 of the Code of Civil Procedure, as amended by Act
No. 2645 of the Philippine Legislature. He therefore
refused to admit the purported will to probate, and the
petitioner
appealed.
The attesting clause of the will in question is
incorporated in the will itself, constituting the last
paragraph thereof; and its defect consists in the fact that it
does not state the number of sheets or pages upon which.
the will is written, though it does state that the testatrix
and the instrumental witnesses signed on every page, as
is in fact obvious from an inspection of the instrument.
Each of the pages moreover bears successively the
Visayan words, "isa," "duha," "tatlo," "apat," "lima,"
which mean respectively "one," "two," "three," "four,"
"five," Visayan being the dialect in which the instrument
is
written.
By section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, it is required that each and
every page of the will shall be numbered correlatively in
letters and that the attesting clause shall state the number
of
sheets
or
pages
used.
Without deciding in this case whether the will in question
is rendered invalid by reason of the manner in which the
pages are numbered, the court is unanimous upon the
point that the defect pointed out in the attesting clause is
fatal. The law plainly says that the attestation shall state

the number of sheets or pages used, the evident purpose

being to safeguard the document from the possibility of
the interpolation of additional pages or the omission of
some of the pages actually used. It is true that this point
is also safeguarded by the other two requirements that the
pages shall be consecutively lettered and that each page
shall be signed on the left margin by the testator and the
witnesses. In the light of these requirements it is really
difficult to see any practical necessity for the additional
requirement that the attesting clause shall state the
number of sheets or pages used. Nevertheless, it cannot
be denied that the last mentioned 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.
In two cases we have held that the failure to comply with
the strict requirements of this law does not invalidate the
instrument, but the irregularities presented in those cases
were entirely trivial, the defect in one case being that a
will in which the dispositive part consisted of a single
sheet was not signed in the margin in addition to being
signed at the bottom (In re will of Abangan, 40 Phil.,
476); in the other, that the pages comprising the body of
the will were signed by the testator and witnesses on the
right margin instead of the left (Avera v. Garcia and
Rodriguez, p. 145, ante). In the case now before us the
defect is, in our opinion, of more significance; and the
rule here applicable is that enunciated in Caraig v.
Tatlonghari, R. G. No. 12558, decided March 23, 1918,
not reported, and In re estate of Saguinsin, 41 Phil., 875),
in each of which the will was held to be invalid.
It results that the trial judge did not err in refusing
probate of the will, and the judgment must be affirmed. It
is so ordered, with costs against the Appellant.
Johnson, Araullo, Avancea, and Villamor, JJ., concur.

SECOND

[G.R.

No.

15566.

September

14,

1921.

EUTIQUIA AVERA, Petitioner-Appellee, v. MARINO

GARCIA, and JUAN RODRIGUEZ, as guardian of
the minors Cesar Garcia and Jose Garcia, objectorsappellants.
Dionisio
Marcelino

Villanueva

for Appellants.

Lontok

for Appellee.

SYLLABUS
1.
WILLS;
PROBATE;
NECESSITY
FOR
PRODUCTION OF ATTESTING WITNESSES.
When the petition for probate of a will is contested the
proponent should introduce all three of the attesting
witnesses, if alive and within reach of the process of the
court; and the execution of the will cannot be considered
sufficiently proved by the testimony of only one, without
satisfactory explanation of the failure to produce the
other
two.
2. ID.; PLEADING AND PRACTICE; OBJECTION TO
PROOF OF WILL BY SINGLE WITNESS.
Nevertheless, in a case where the attorney for the
contestants raised no question upon this point in the court
below, either at the hearing upon the petition or in the
motion to rehear, it is held that an objection to the probate
of the will on the ground that only one attesting Witness
was examined by the proponent of the will without
accounting for the absence of the others, cannot be made
for
the
first
time
in
this
court.
3. WILLS; SIGNATURES OF TESTATOR AND
ATTESTING WITNESSES; USE OF RIGHT MARGIN.
A will otherwise properly executed in accordance with
the requirements of existing law is not rendered invalid
by the fact that the paginal signatures of the testator and
attesting witnesses appear in the right margin instead of
the left.

DIVISION

14

DECISION

STREET, J. :

In proceedings in the court below, instituted by Eutiquia

Avera for probate of the will of one Esteban Garcia,
contest was made by Marino Garcia and Juan Rodriguez,
the latter in the capacity of guardian for the minors Jose
Garcia and Cesar Garcia. Upon the date appointed for the
hearing, the proponent of the will introduced one of the
three attesting witnesses who testified with details not
necessary to be here specified that the will was
executed with all necessary external formalities, and that
the testator was at the time in full possession of disposing
faculties. Upon the latter point the witness was
corroborated by the person who wrote the will at the
request of the testator. Two of the attesting witnesses
were not introduced, nor was their absence accounted for
by
the
proponent
of
the
will.
When the proponent rested the attorney for the opposition
introduced a single witness whose testimony tended to
show in a vague and indecisive manner that at the time
the will was made the testator was so debilitated as to be
unable to comprehend what he was about.
After the cause had been submitted for determination
upon the proof thus presented, the trial judge found that
the testator at the time of the making of the will was of
sound mind and disposing memory and that the will had
been properly executed. He accordingly admitted the will
to
probate.
From this judgment an appeal was taken in behalf of the
persons contesting the will, and the only errors here
assigned have reference to the two following points,
namely, first, whether a will can be admitted to probate,
where opposition is made, upon the proof of a single
attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will

in question is rendered invalid by reason of the fact that

the signature of the testator and of the three attesting
witnesses are written on the right margin of each page of
the
will
instead
of
the
left
margin.
Upon the first point, while it is undoubtedly true that an
uncontested will may be proved by the testimony of only
one of the three attesting witnesses, nevertheless in
Cabang v. Delfinado (34 Phil., 291), this court declared
after an elaborate examination of the American and
English authorities that when a contest is instituted, all of
the attesting witnesses must be examined, if alive and
within reach of the process of the court.
In the present case no explanation was made at the trial
as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had
been pending from December 21, 1917, until the date set
for the hearing, which was April 5, 1919, no formal
contest was entered until the very day set for the hearing;
and it is probable that the attorney for the proponent,
believing in good faith that probate would not be
contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will
was contested, incautiously permitted the case to go to
proof without asking for a postponement of the trial in
order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply
any basis for changing the rule expounded in the case
above referred to; and were it not for a fact now to be
mentioned, this court would probably be compelled to
reverse this case on the ground that the execution of the
will had not been proved by a sufficient number of
attesting
witnesses.
It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of
the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial.
Accordingly it is insisted for the appellee that this

question cannot now be raised for the first time in this

court. We believe this point is well taken, and the first
assignment of error must be declared not to be well taken.
This exact question has been decided by the Supreme
Court of California adversely to the contention of the
appellant, and we see no reason why the same rule of
practice should not be observed by us. (Estate of
McCarty,
58
Cal.,
335,
337.)
There are at least two reasons why the appellate tribunals
are disinclined to permit certain questions to be raised for
the first time in the second instance. In the first place it
eliminates the judicial criterion of the Court of First
Instance upon the point there presented and makes the
appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a
new trial. In the second place, it permits, if it does not
encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed,
while they are engaged in other discussions more
simulated than real. These considerations are, we think,
decisive.
In ruling upon the point above presented we do not wish
to be understood as laying down any hard and fast rule
that would prove an embarrassment to this court in the
administration of justice in the future. In one way or
another we are constantly here considering aspects of
cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below;
and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought
before it. What we mean to declare is that when we
believe that substantial justice has been done in the Court
of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have
been presented in that court, we will in the exercise of a
sound discretion ignore such question upon appeal; and
this is the more proper when the question relates a defect
which might have been cured in the Court of First
Instance if attention had been called to it there. In the
present case, if the appellant had raised this question in

15

the lower court, either at the hearing or upon a motion for

a new trial, that court would have had the power, and it
would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought
into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first
raised by the appellant in this court. We hold that this is
too
late.
Properly understood, the case of Cabang v. Delfinado,
supra, contains nothing inconsistent with the ruling we
now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for a
republication and new trial for the avowed purpose of
presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless
subsequently failed without any apparent reason to take
their testimony. Both parties in that case were therefore
fully apprised at the question of the number of witnesses
necessary to prove the will was in issue in the lower
court.
The second point involved in this case is whether, under
section 618 of the Code of Civil Procedure, as amended
by Act No. 2645, it is essential to the validity of a will in
this jurisdiction that the names of the testator and the
instrumental witnesses should be written on the left
margin of each page, as required in said Act, and not
upon the right margin, as in the will now before us; and
upon this we are of the opinion that the will in question is
valid. It is true that the statute says that the testator and
the instrumental witnesses shall sign their names on the
left margin of each and every page; and it is undeniable
that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from
cases
heretofore
decided
by
this
court.
Still some details at times creep into legislative
enactments which are so trivial that it would be absurd to
suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect

that the signatures of the testator and witnesses shall be

written on the left margin of each page rather than on
the right margin seems to be of this character. So far
as concerns the authentication of the will, and of every
part thereof, it can make no possible difference whether
the names appear on the left or no the right margin,
provided they are on one or the other. In Caraig v.
Tatlonghari (R. G. No. 12558, decided March 23, 1918,
not reported), this court declared a will void which was
totally lacking in the signatures required to be written on
its several pages; and in the case of Re estate of
Saguinsin (41 Phil., 875), a will was likewise declared
void which contained the necessary signatures on the
margin of each leaf (folio), but not in the margin of each
page
containing
written
matter.

said:jgc:chanrobles.com.ph

The instrument now before us contains the necessary

signatures on every page, and the only point of deviation
from the requirement of the statute is that these
signatures appear in the right margin instead of the left.
By the mode of signing here adopted every page and
provision of the will is authenticated and guarded from
possible alteration in exactly the same degree that it
would have been protected by being signed in the left
margin; and the resources of casuistry could be exhausted
without discovering the slightest difference between the
consequences of affixing the signatures in one margin or
the
other.

In the case before us, where ingenuity could not suggest

any possible prejudice to any person, as attendant upon
the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the
instrument.

The same could not be said of a case like that of Estate of

Saguinsin, supra, where only the leaves, or alternate
pages, were signed and not each written page; for as
observed in that case by our late lamented Chief Justice,
it was possible that in the will as there originally
executed by the testatrix only the alternative pages had
been used, leaving blanks on the reverse sides, which
conceivably might have been filled in subsequently.
The controlling considerations on the point now before us
were well stated in Re will of Abangan (40 Phil., 476,
479), where the court, speaking through Mr. Justice
Avancea, in a case where the signatures were placed at
the bottom of the page and not in the margin,

"The object of the solemnities surrounding the execution

of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators last
will, must be disregarded."cralaw virtua1aw library

It results that the legal errors assigned are not sustainable,

and the judgment appealed from will be affirmed. It is so
ordered,
with
costs against the
appellants.
Johnson, Araullo, Avancea and Villamor, JJ., concur.

EN
[G.R.

BANC
No.

L-14322.

February

25,

1960.]

In the matter of the TESTATE ESTATE of

PETRONILA TAMPOY, deceased, v. DIOSDADA
ALBERASTINE,
petitioner
and Appellant.
Agustin Y. Kintanar for Appellant.

16

SYLLABUS

1. WILLS; TESTATRIXS FAILURE TO SIGN LEFT

MARGIN. Where a will consist of two pages and the
last page had been duly signed by the testatrix and the
three testimonial witnesses who also signed the first page
but the testatrix failed to sign the left margin of the first
page, Held: that the will was not executed in accordance
with law. Section 618 of Act 190, as amended, requires
that the testator sign the will and each and every page
thereof in the presence of the testator and of each other,
which requirement should be expressed in the attestation
clause. This requirement is mandatory, for failure to
comply with it is fatal to the validity of the will
(Rodriguez v. Alcala, 55 Phil., 150). It has been held that
"statutes prescribing the formalities to be observed in the
execution of wills are very strictly construed.

DECISION

BAUTISTA ANGELO, J.:

This concerns the probate of a document which purports

to be the last will and testament of one Petronila Tampoy.
After the petition was published in accordance with law
and petitioner had presented oral and documentary
evidence, the trial court denied the petition on the ground
that the left hand margin of the first page of the will does
not bear the thumbmark of the testatrix. Petitioner
appealed from this ruling but the Court of Appeals
certified the case to us because it involves purely a
question
of
law.
The facts of this case as found by the trial court are as
follows:jgc:chanrobles.com.ph
"De las pruebas resulta que Petronila Tampoy, ya viuda y
sin hijos, rog a Bonifacio Mioza que la leyera el

testamento Exhibito A y la explicara su contenido en su

casa en la calle San Miguel, del municipio de Argao,
provincia de Ceb, en 19 de noviembre de 1939, y asi lo
hizo Bonifacio Mioza en presencia de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Pea y
Simeona Omboy, y despus de conformarse con el
contendido del testamento, ella rog a Bonifacio Mioza,
que escribiera su nombre al pie del testamento, en la
pagina segunda, y asi lo hizo Bonifacio Mioza, y
despus ella estamp su marca digital entra su nombre y
apellido en presencia de todos y cada uno de los tres
testigos instrumentales, Rosario K. Chan, Mauricio da la
Pea y Simeon Omboy y de Bonifacio Mioza, y
despus, Bonifacio Mioza firm tambin al pie del
testamento, en la pagina 2, en presencia de la testadora y
da todos y cada uno de los tres testigos arriba nombrados.
La testadora asi como Bonifacio Mioza no firmaron, sin
embargo, en la margen izquierda ni en ninguna parte de
la primera pagina del testamento que se halla compuesto
de dos paginas. Todos y cada uno de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Pea y
Simeon Omboy, firmaron al pie de la clausula de
atestiguamiento que esta escrita en la pagina segunda del
testamento y en la margen izquierda de la misma pagina
2 y de la pagina primera en presencia de la testadora, de
Bonifacio Mioza, del abogado Kintanar y de todos y
cada uno de ellos. El testamento fu otorgado por la
testadora libre y expontaneamente. sin haber sido
amenazada, forzada o intimidada, y sin haberse ejercido
sobre ella influencia indebida, estando la misma en pleno
uso de sus facultades mentales y disfrutando de buena
salud. La testadora falleci en su casa en Argao en 22 de
febrero de 1957 (Vase certificado de defuncin Exhibito
B). La heredera instituida en el testamento, Carman
Alberastine, muri dos semanas despus que la testadora,
o sea en 7 de Marzo de 1957, dejando a su madre, la
solicitante Diosdada Alberastine."cralaw virtua1aw
library

Petitioner now prays that this ruling be set aside for the
reason that, although the first page of the will does not
bear the thumbmark of the testatrix, the same however
expresses her true intention to give the property to her
whose claims remains undisputed. She wishes to
emphasize that no one has filed any opposition to the
probate of the will and that while the first page does not
bear the thumbmark of the testatrix, the second however
bears her thumbmark and both pages were signed by the
three testimonial witnesses. Moreover, despite the fact
that the petition for probate is unopposed, the three
testimonial witnesses testified and manifested to the court
that the document expresses the true and voluntary will of
the
deceased.

The above facts are not controverted, there being no

opposition to the probate of the will. However, the trial
court denied the petition on the ground that the first page
of the will does not bear the thumbmark of the testatrix.

Since the will in question suffers from the fatal defect

that it does not bear the thumbmark of the testatrix on its
first page even if it bears the signature of the three
instrumental witnesses, we cannot escape the conclusion

This contention cannot be sustained as it runs counter to

the express provision of the law. Thus, Section 618 of Act
190, as amended, requires that the testator sign the will
and each and every page thereof in the presence of the
witnesses, and that the latter sign the will and each and
every page thereof in the presence of the testator and of
each other, which requirement should be expressed in the
attestation clause. This requirement is mandatory, for
failure to comply with it is fatal to the validity of the will
(Rodriguez v. Alcala, 55 Phil., 150). Thus, it has been
held that "Statutes prescribing the formalities to be
observed in the execution of wills are very strictly
construed. As stated in 40 Cyc., at page 1097, A will
must be executed in accordance with the statutory
requirements; otherwise it is entirely void. All these
requirements stand as of equal importance and must be
observed, and courts cannot supply the defective
execution of a will. No power or discretion is vested in
them, either to superadd other conditions or dispense with
those enumerated in the statutes" (Uy Coque v. Navas L.
Sioca, 43 Phil., 405, 407; See also Sao v. Quintana, 48
Phil., 506; Gumban v. Gorecho 50 Phil., 30; Quinto v.
Morata,
54
Phil.,
481).

17

that the same fails to comply with the law and therefore,
cannot
be
admitted
to
probate.
Wherefore, the order appealed from is affirmed, without
pronouncement
as
to
costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador
Concepcin, Reyes, J. B. L. Endencia, Barrera and
Gutirrez David, JJ., concur.
EN BANC

To said application an opposition was presently by

Antonio Abella, Ignacia Abella, Avicencia Abella, and
Santiago Vito, alleging that the supposed will of the
deceased Zalamea was not executed in conformity with
the provinces of the law, inasmuch as it was not paged
correlatively in letters, nor was there any attestation
clause in it, nor was it signed by the testatrix and the
witnesses
in
the
presence
of
each
other.chanroblesvirtualawlibrary chanrobles virtual law
library

G.R. No. 17857 June 12, 1922

In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee, vs. ANTONIO
ABELLA, ET AL., opponents-appellants.
Crispin
Oben
for
appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single,
60 years old, who was residing in the municipality of
Pagsanjan, Province of Laguna, executed her last will and
testament with an attached inventory of her properties,
Exhibits A and A-1, in the presence of three witnesses,
who signed with her all the pages of said documents. The
testatrix died on the 6th of January, 1921, and, as the
record shows, the executor appointed in the will, Pedro
Unson, filed in the court of First Instance of Laguna on
the 19th of January of the same year an application for
the probate of the will and the issuance of the proper
letters
of
administration
in
his
favor.chanroblesvirtualawlibrary chanrobles virtual law
library

Trial having been held, the judge a quo overruled the

opposition of the contestants, and ordered the probate of
the will, Exhibit A, and the inventory, Exhibit A-1,
holding that both documents contained the true and last
will
of
the
deceased
Josefa
Zalamea.chanroblesvirtualawlibrary chanrobles
virtual
law library
From the judgment of the court below, the contestants
have appealed, and in their brief they assign three errors,
which, in their opinion, justify the reversal of the
judgment
appealed
from.chanroblesvirtualawlibrary chanrobles virtual law
library
The first error assigned by the appellants as committed
by the court below is its finding to the effect that Exhibit
A, said to be the will of the deceased Josefa Zalamea,
was executed with all the solemnities required by the
law.chanroblesvirtualawlibrary chanrobles virtual law
library
The arguments advanced by appellants' counsel in
support of the first assignment of error tend to impeach
the credibility of the witnesses for the proponent,
specially that of Eugenio Zalamea. We have made a

careful examination of the evidence, but have not found

anything that would justify us in disturbing the finding of
the court a quo. The attesting witnesses, Eugenio
Zalamea and Gonzalo Abaya, clearly testify that together
with the other witness to the will, Pedro de Jesus, they
did sign each and every page of the will and of the
inventory in the presence of each other and of the
testatrix, as the latter did likewise sign all the pages of the
will
and
of
the
inventory
in
their
presence.chanroblesvirtualawlibrary chanrobles virtual
law library
In their brief the appellants intimate that one of the pages
of the will was not signed by the testatrix, nor by the
witnesses on the day of the execution of the will, that is,
on the 19th of July, 1918, basing their contention on the
testimony of Aurelio Palileo, who says that on one
occasion Gonzalo Abaya told him that one of the pages of
the will had not been signed by the witnesses, nor by the
testatrix on the day of its execution. Palileo's testimony is
entirely contradicted by Gonzalo Abaya not only in the
direct, but in the rebuttal, evidence as well. To our mind,
Palileo's testimony cannot prevail over that of the
attesting witnesses, Gonzalo Avaya and Eugenio
Zalamea. The appellants impeach the credibility of
Eugenio Zalamea, for having made a sworn declaration
before the justice of the peace of Santa Cruz, Laguna,
before the trial of this case, to the effect that he was really
one of the witnesses to the will in question, which fact
was corroborated by himself at the trial. The appellants
take Zalamea's testimony in connection with the
dismissal of a criminal case against a nephew of his, in
whose success he was interested, and infer from this fact
the partiality of his testimony. We deem this allegation of
little importance to impeach the credibility of the witness
Zalamea, especially because his testimony is
corroborated by the other attesting witness. Gonzalo

18

Abaya, and by attorney Luis Abaya, who had prepared

the testament at the instance of the testatrix. The
foregoing is sufficient for us to conclude that the first
assignment of error made by the appellants is
groundless.chanroblesvirtualawlibrary chanrobles virtual
law library
The appellants contend that the court below erred in
admitting the will to probate notwithstanding the
omission of the proponent to produce one of the attesting
witnesses.chanroblesvirtualawlibrary chanrobles virtual
law library
At the trial of this case the attorneys for the proponent
stated to the court that they had necessarily to omit the
testimony of Pedro de Jesus, one of the persons who
appear to have witnessed the execution of the will, for
there were reasonable grounds to believe that said
witness was openly hostile to the proponent, inasmuch as
since the announcement of the trial of the petition for the
probate of the will, said witness has been in frequent
communication with the contestants and their attorney,
and has refused to hold any conference with the attorneys
for the proponent. In reply to this, the attorney for the
contestants, said to the court, "without discussing for the
present whether or not in view of those facts (the facts
mentioned by the attorneys for the petitioner), in the
hypothesis that the same are proven, they are relieved
from producing that witness, for while it is a matter not
decided, it is a recognized rule that the fact that a witness
is hostile does not justify a party to omit his testimony;
without discussing this, I say, I move that said statement
be stricken out, and if the proponent wants these facts to
stand to stand in the record, let him prove them." The
court a quo ruled, saying, "there is no need." chanrobles
virtual law library

To this ruling of the court, the attorney for the appellants

did
not
take
any
exception.chanroblesvirtualawlibrary chanrobles virtual
law library
In the case of Avera vs. Garcia and Rodriguez (42 Phil.,
145), recently decided by this court, in deciding the
question whether a will can be admitted to probate, where
opposition is made, upon the proof of a single attesting
witness, without producing or accounting for the absence
of the other two, it was said; "while it is undoubtedly true
that an uncontested will may be proved by the testimony
of only one of the three attesting witnesses, nevertheless
in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the American
and English authorities that when a contest is instituted,
all of the attesting witnesses must be examined, if alive
and within reach of the process of the court.
In the present case no explanation was made at the trial
as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had
been pending from December 21, 1917, until the date set
for the hearing, which was April 5, 1919, no formal
contest was entered until the very day set for the hearing;
and it is probable that the attorney for the proponent,
believing in good faith that probate would not be
contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will
was contested, incautiously permitted the case to go to
proof without asking for a postponement of the trial in
order that he might produce all the attesting
witnesses.chanroblesvirtualawlibrary chanrobles virtual
law library

Although this circumstance may explain why the three

witnesses were not produced, it does not in itself supply
any basis for changing the rule expounded in the case
above referred to; and were it not for a fact now to be
mentioned, this court would probably be compelled to
reverse this case on the ground that the execution of the
will had not been proved by a sufficient number of
attesting witnesses.chanroblesvirtualawlibrary chanrobles
virtual law library
It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of
the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial.
Accordingly it is insisted for the appellee that this
question cannot now be raised for t he first time in this
court. We believe this point is well taken, and the first
assignment of error must be declared not to be well taken.
This exact question has been decided by the Supreme
Court of California adversely to the contention of the
appellant, and we see no reason why the same rule of
practice should not be observed by us. (Estate of
McCarty, 58 Cal., 335, 337.) chanrobles virtual law
library
There are at least two reasons why the appellate tribunals
are disinclined to permit certain questions to be raised for
the first time in the second instance. In the first place it
eliminates the judicial criterion of the Court of First
Instance upon the point there presented and makes the
appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a
new trial. In the second place, it permits, if it does not
encourage, attorneys to trifle with the administration of
justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed,
while they are engaged in other discussions more

19

simulated than real. These considerations are, we think,

decisive.chanroblesvirtualawlibrary chanrobles
virtual
law library
In ruling upon the point above presented we do not wish
to be understood as laying down any hard and fast rule
that would prove an embarrassment to this court in the
administration of justice in the future. In one way or
another we are constantly here considering aspects of
cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below;
and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought
before it. What we mean to declare is that when we
believe that substantial justice has been done in the Court
of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have
been presented in that court, we will in the exercise of a
sound discretion ignore such question upon appeal; and
this is the more proper when the question relates to a
defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the
present case, if the appellant had raised this question in
the lower court, either at the hearing or upon a motion for
a new trial, that court would have had the power, and it
would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought
into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first
raised by the appellant in this court. We hold that this is
too late.chanroblesvirtualawlibrary chanrobles virtual law
library
Properly understood, the case of Cabang vs. Delfinado,
supra, contains nothing inconsistent with the ruling we
now make, for it appears from the opinion in that case

that the proponent of the will had obtained an order for a

republication and new trial for the avowed purpose of
presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless
subsequently failed without any apparent reason to take
their testimony. Both parties in that case were therefore
fully apprised that the question of the number of
witnesses necessar to prove the will was in issue in the
lower court.
In the case at bar, we do not think this question properly
to have been raised at the trial, but in the memorandum
submitted by the attorney for the appellants to the trial
court, he contended that the will could not be admitted to
probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this
witness raises a presumption against the pretension of the
proponent. The trial court found that the evidence
introduced by the proponent, consisting of the testimony
of the two attesting witnesses and the other witness who
was present at the execution, and had charge of the
preparation of the will and the inventory, Exhibits A and
A-1, was sufficient. As announced in Cabang vs.
Delfinado, supra, the general rule is that, where
opposition is made to the probate of a will, the attesting
witnesses must be produced. But there are exceptions to
this rule, for instance, when a witness is dead, or cannot
be served with process of the court, or his reputation for
truth has been questioned or he appears hostile to the
cause of the proponent. In such cases, the will may be
admitted to probate without the testimony of said
witness, if, upon the other proofs adduced in the case, the
court is satisfied that the will has been duly executed.
Wherefore, we find that the non-production of the
attesting witness, Pedro de Jesus, as accounted for by the
attorney for the proponent at the trial, does not render
void the decree of the court a quo, allowing the

probate.chanroblesvirtualawlibrary chanrobles virtual law

library
But supposing that said witness, when cited, had testified
adversely to the application, this would not by itself have
change the result reached by the court a quo, for section
632 of the Code of Civil Procedure provides that a will
can be admitted to probate, notwithstanding that one or
more witnesses do not remember having attested it,
provided the court is satisfied upon the evidence adduced
that the will has been executed and signed in the manner
prescribed
by
the
law.chanroblesvirtualawlibrary chanrobles virtual law
library
The last error assigned by the appellants is made to
consist in the probate of the inventory, Exhibit A-1,
despite the fact that this exhibit has no attestation clause
in it, and its paging is made in Arabic numerals and not in
letters.chanroblesvirtualawlibrary chanrobles virtual law
library
In the third paragraph of the will, reference is made to the
inventory, Exhibit A-1, and at the bottom of said will, the
testatrix Josefa Zalamea says:
In witness whereof, I sign this will composed of ten
folios including the page containing the signatures and
the attestation of the witnesses; I have likewise signed the
inventory attached to this will composed of ten folios in
the presence of Messrs. Gonzalo Abaya, Eugenio
Zalamea, Pedro de Jesus, in this municipality of
Pagsanjan, Laguna, Philippine Islands, this 19th of July,
1918.
And the attestation clause is as follows:

20

The foregoing will composed of ten folios including this

one whereunto we have affixed our signatures, as well as
the inventory of the properties of Doa Josefa Zalamea y
Abella, was read to Doa Josefa Zalamea y Abella, and
the latter affixed her name to the last, and each and every
page of this will and inventory composed of ten folios in
our presence; and she declared this to be her last will and
testament and at her request we have affixed hereunto our
respective signatures in her presence and in the presence
of each other as witnesses to the will and the inventory
this 19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.)
GONZALO
EUGENIO
PEDRO DE JESUS.

ABAYA,
ZALAMEA,

In view of the fact that the inventory is referred to in the

will as an integral part of it, we find that the foregoing
attestation clause is in compliance with section 1 of Act
No. 2645, which requires this solemnity for the validity
of a will, and makes unnecessary any other attestation
clause
at
the
end
of
the
inventory.chanroblesvirtualawlibrary chanrobles virtual
law library
As to the paging of the will in Arabic numerals, instead
of in letters, we adhere to the doctrine announced in the
case of Aldaba vs. Roque (p. 378, ante), recently decided
by this court. In that case the validity of the will was
assailed on the ground that its folios were paged with the
letters A, B, C, etc., instead of with the letters "one,"
two," "three," etc. It was held that this way of numbering
the pages of a will is in compliance with the spirit of the
law, inasmuch as either one of these methods indicates
the correlation of the pages and serves to prevent the
abstraction of any of them. In the course of the decision,
we said: "It might be said that the object of the law in

requiring that the paging be made in letters is to make

falsification more difficult, but it should be noted that
since all the pages of the testament are signed at the
margin by the testatrix and the witnesses, the difficulty of
forging the signatures in either case remains the same. In
other words the more or less degree of facility to imitate
the writing of the letters A, B, C, etc., does not make for
the easiness to forge the signatures. And as in the present
case there exists the guaranty of the authenticity of the
testament, consisting in the signatures on the left margins
of the testament and the paging thereof as declared in the
attestation clause, the holding of this court in Abangan
vs. Abangan (40 Phil., 476), might as well be repeated:
"The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation whatsoever, that
adds nothing but demands more requisites entirely
unnecessary, useless, and frustrative of the testator's last
will, must be disregarded."
In that case the testament was written on one page, and
the attestation clause on another. Neither one of these
pages was numbered in any way, and it was held: "In a
will consisting of two sheets the first of which contains
all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses, and the
second contains only the attestation clause and is signed
also at the bottom by the three witnesses it is not
necessary that both sheets be further signed on their

margins by the testator and the witnesses, or be

paged."chanrobles virtual law library
This means that, according to the particular case, the
emission of paging does not necessarily render the
testament invalid.chanroblesvirtualawlibrary chanrobles
virtual law library
The law provides that the numbering of the pages should
be in letters placed on the upper part of the sheet, but if
the paging should be placed in the lower part, would the
testament be void for this sole reason? We believe not.
The law also provides that the testator and the witnesses
must sign the left margin of each of the sheets of the
testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not.
This court has already held in Avera vs. Garcia and
Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that
the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully
complied with. The same execution for wills must be
fully complied with. The same doctrine is also deducible
from cases heretofore decided by this court."chanrobles
virtual law library
"Still some details at time creep into legislative
enactments which are so trivial that it would be absurd to
suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect
that the signatures of the testator and witnesses shall be
written on the left margin of each page - rather than on
the margin - seems to be of this character. So far as
concerns the authentication of the will, and of every part

21

thereof, it can make no possible difference whether the

names appear on the left or on the right margin, provided
they are on one or the other. In Craig vs. Tatlonghari (G.
R. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking
in the signatures required to be written on its several
pages; and in the case of Re Estate of Saguinsin (41 Phil.,
875) a will was likewise declared void which contained
the necessary signatures on the margin of each leaf
(folio), but not in the margin of each page containing
written matter."
We do not desire to intimate that the numbering in letters
is a requisite of no importance. But since its principal
object is to give the correlation of the pages, we hold that
his object may be attained by writing one, two, three,
etc., as well as by writing A, B, C, etc.
We see no reason why the same rule should not be
applied where the paging is in Arabic numerals, instead
of in letters, as in the inventory in question. So that,
adhering to the view taken by this court in the case of
Abangan vs. Abangan, and followed in Aldava vs. Roque,
with regard to the appreciation of the solemnities of a
will, we find that the judgement appealed from should be,
as is hereby, affirmed with the costs against the
appellants. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand, Johns and
Romualdez, JJ., concur.

In re will of Maria Roque y Paraiso, deceased.

CEFERINO
ALDABA, petitioner-appellee,
vs. LUDOVICO ROQUE, opponent-appellant.

We have examined document Exhibit 4 which is the will

in question and we find at the end thereof the following
in Tagalog which translated into English reads:

Lucero
and
Tengo
Vicente Platon for appellee.

This document expresses my last and spontaneous will,

and is my last will and testament, which was drawn by
the lawyer, Don Vicente Platon, at my direction, and
everything contained in this testament has been ordained
and directed by me to said Vicente Platon in order that it
might be embodied in this testament, and after this
testament has been drawn up, I directed him to read it so
that I might hear all its contents, and I have heard and
understood all the contents of this document which is my
last will, wherefore, and not knowing how to write, I
have requested Don Vicente Platon to write and sign my
name in my stead hereon; I declare that this testament is
composed of four sheets, actually used, that the sheets are
paged with the letter A, B, C, and d, and above my name
I have placed the thumb mark of my right hand in the
presence of the subscribing witnesses, and that all the
witnesses have signed in my presence and of each other
here at Malolos, Bulacan, this 9th day of the month of
July, 1918; and I also declare that at my request Don
Vicente Platon has written my name on the left margin of
all pages of this testament, in the presence of the
witnesses, and all the witnesses have also signed all the
pages of this testament on the left margin in my presence
and that of each other.

for

appellant.

VILLAMOR, J.:
It appears from the record of the case that on July 9,
1918, Maria Roque y Paraiso, the widow of Bruno
Valenzuela, resident of the barrio of Mambog,
municipality of Malolos, Province of Bulacan, executed
her last will and testament in the Tagalog dialect with the
help of Vicente Platon and in the presence of three
witnesses who signed the attestation clause and each of
the four pages of the testament. Maria Roque died on
December 3, 1919, and when her will was filed in court
for probate, it was contested by Ludovico Roque on the
ground that it had not been prepared nor executed in
conformity with the requirements and solemnities
prescribed by law.chanroblesvirtualawlibrary chanrobles
virtual law library
After due proceedings had been had, the Court of First
Instance of Bulacan by its decision rendered on February
27th of the following year, pronounced the testament in
question valid, and ordered its probate, appointing
Ceferino Aldaba as the administrator of the
estate.chanroblesvirtualawlibrary chanrobles virtual law
library

EN BANC
G.R. No. L-17304 May 22, 1922

The errors assigned by the appellant are two, to wit:

"That each and every folio of the said testament is not
paged correlatively in letter," and "that the said will lacks
the attestation clause required by law." chanrobles virtual
law library

X
MARIA
Per
(Sgd.)
Witness.
(Sgd.)
Witness.

(Her
thumb
ROQUE
Y
VICENTE
REGINO
E.

IGNACIO

mark)
PARAISO,
PLATON.
MENDOZA,

ANIAG,

22

(Sgd.)
Witness.

CEFERINO

ALDABA.

In reality, it appears that it is the testatrix who makes the

declaration about the points contained in the above
described paragraph; however, as the witnesses, together
with the testatrix, have signed the said declaration, we are
of the opinion and so hold that the words above quoted of
the testament constitute a sufficient compliance with the
requirements of section 1 of Act No. 2645 which
provides that:
The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of each other.
In regard to the other assignment of error, to wit, that
each of the folios of the said testament is not paged
correlatively in letters "one." "two," "three," etc., but only
with the letters A, B, C, etc., we are of the opinion that
this method of indicating the paging of the testament is a
compliance with the spirit of the law, since either one of
the two ways above-mentioned indicates the correlation
of the pages and serves to prevent the loss of any of
them. It might be said that the object of the law in
requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that
since all the pages of the testament are signed at the
margin by the testatrix and the witnesses, the difficulty of
forging the signatures in either case remains the same. In
other words the more or less degree of facility to imitate
the writing of the letters A, B, C, etc., does not make for
the easiness to forge the signature. And as in the present

case there exists the guaranty of the authenticity of the

testament, consisting in the signatures on the left marging
of the testament and the paging thereof as declared in the
attestation clause, the holding of this court in Abangan
vs. Abangan (40 Phil, 476), might as well be repeated:
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecesary, useless, and frustrative of the testator's last
will, must be disregarded.
In that case the testament was written on one page, and
the attestation clause on another. Neither one of these
pages was numbered in any way; and it was held:
In a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at
the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed
also at the bottom by the three witnesses, it is not
necessary that both sheets be further signed on their
margings by the testator and the witnesses, or be paged.
This means that, according to the particular case, the
omission of paging does not necessarily render the
testament invalid.chanroblesvirtualawlibrary chanrobles
virtual law library

The law provides that the numbering of the pages should

be in letters placed on the upper part of the sheet, but if
the paging should be place din the lower part, would the
testament be void for his sole reason? We believe not.
The law also provides that the testator and the witnesses
must sign the left margin of each of the sheets of the
testament; but if they should sign on the right margin,
would this fact also annul the testament? Evidently not.
This court has already held in Avera vs. Garcia and
Rodriguez (42 Phil., 145):
It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that
the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from
cases heretofore decided by this court chanrobles virtual
law library
Still some details at times creep into legislative
enactments which are so trivial that it would be absurd to
suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect
that the signatures of the testator and witnesses shall be
written on the left margin of each page - rather than on
the right margin - seems to be of this character. So far as
concerns the authentication of the will, and of every part
thereof, it can make no possible different whether the
names appear on the left or on the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R.
G. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking
in the signatures required to be written on its several
pages; and in the case of Re estate of Saguinsin (41 Phil.,
875), a will was likewise declared void which contained
the necessary signature on the margin of each left (folio),

23

but not on the margin of each page containing written

matter.
We do not desire to intimate that the numbering in letters
is a requisite of no importance. But since its principal
object is to give the correlation of the pages, we hold that
this object may be attained by writing "one." "two,"
"three," etc., well as by writing A, B, C, etc. Following,
therefore, the view maintained by this court in the case
of Abangan vs. Abangan, supra, as regards the
appreciation of the solemnities of a testament, we decide
that the judgment appealed from must be, as is hereby,
affirmed with costs against the appellant. So ordered.
Araullo, C.J., Malcolm,
Romualdez, JJ., concur.

Avancea,

THIRD
[G.R.

Ostrand

and

DIVISION
No.

55134.

December

4,

1995.]

PEDRO
PILAPIL
and
TEODORICA
PENARANDA, Petitioners, v. HONORABLE COURT
OF APPEALS, Spouses CARMEN OTADORA and
LUIS NASIAS, VITALIANA OTADORA, Spouses
NACARIO BENSIG and NARCELA ALIGWAY,
Spouses DIONISIO BENSIG and JUANITA
ARSENAL, Spouses SINFOROSO ANDRIN and
VISITACION OTADORA, and H. SERAFICA &
SONS CORPORATION, Respondents.

DECISION

ROMERO, J.:

Felix Otadora was the registered owner of a 273,796square meter parcel of land in Ormoc City known as Lot
8734 and covered by original Certificate of Title No.
26026. He died in 1940 survived by his wife, Leona
Garbo, and their children Vitaliana, Maxima and Agaton.
Another son, Sergio, predeceased him. From 1946 to
1947, Leona and the three children sold portions of Lot
8734 to separate buyers, leaving a segregated portion
know Lot 8734-B-S with an area of 51,019 square
meters.
Leona
died
in
1956.
On March 21, 1962, the Otadora siblings, together with
Sergios son Antonio, executed a deed of extrajudicial
partition and confirmation of sales, 1 giving each of them
a one-fourth undivided share in the remaining property. 2
That very same day, Vitaliana and Agaton sold to
petitioners an undivided portion, measuring 18,626
square meters, of Lot 8734-B-5. 3 The deed of sale,
which was executed in the presence of Antonio and a
certain Eulogio Simon, specified that the possession and
ownership of the property sold shall be transferred to the
buyers
from
the
date
of
the
instrument.
The deed of extrajudicial partition was annotated on OCT
No. 26026 on March 26, 1962 under Entry No. 10897.
Because of such partition, OCT No. 26026 was cancelled
and replaced by Transfer Certificate of Title No. 4026
which, in turn, was superseded by TCT No. 4029,
indicating as owners Agaton, Vitaliana, Maxima, and
Antonio. The sale to petitioners was inscribed at the back
of TCT No. 4029 as Entry No. 10903 on March 29, 1962.
Meanwhile, Antonio sold on October 11, 1962 his onefourth share in the lot to his cousin Macario Bensig,
Maximas son, who ceded one-half thereof, or one-eight
of the entire partitioned lot, to the spouses Visitacions
Otadora and Sinforoso Andrin, by way of a Deed of
Quitclaim dated February 12, 1963, 4 and in recognition
of Visitacions hereditary rights as Antonios sister.

Thus, TCT No. 4029 was canceled on February 15, 1963

and supplanted by TCT No. 4484, 5 which showed
Agaton, Vitaliana, Maxima, Macario, and the spouses
Visitacion and Sinforoso Andrin as owners of Lot 8734B-S. Petitioners names did not appear among the
owners, although in the memorandum of encumbrances
at the back of TCT No. 4484, Entry No. 10903 regarding
the sale to them by Vitaliana and Agaton was retained.
Despite the sale of 18,626 square meters of their
undivided share in Lot No. 8734-B-5 earlier made in
favor of petitioners, however, Agaton again sold his onefourth share in the lot to his daughter Carmen on
February 12, 1970; 6 Vitaliana, on the other hand, re-sold
her one-fourth share to Maxima on January 28, 1971. 7
Four days later, Maxima sold her now one-half share to
her sons Dionisio and Macario Bensig, 8 who were able
to register on August 12, 1971 the said properties in their
and their wives names, respectively, as Lot 8734-B-5-D,
under TCT No. 9096 9 covering an area of 5,508 square
meters, and as Lot 8734-B-5-C, under TCT No. 9094 10
covering an area of 26,378 square meters.
On September 8, 1971, TCT No. 9129 11 was issued to
the spouses Sinforoso and Visitacion Andrin for their
6,378-square meter lot now known as Lot No. 8734-B-5B, an 9130 12 was issued to Carmen and her husband
Luis Masias for their 12,755-square meter lot now known
as
Lot
No.
8734-B-S-A.
It must be noted that while Entry No. 10903 does not
seem to have been inscribed on TCT Nos. 9096 and 9129,
the records show that it appears on the back of TCT Nos.
9094 and 9130. 13 With the issuance of these four
certificates of title, TCT No. 4484 was finally canceled.
Upon discovery of the new titles, petitioners protest with
the Register of Deeds of Ormoc City who, in a letter
dated December 9, 1971, informed Carmen, Sinforoso,
Macario, and Dionisio of the existence of the deed of sale
in petitioners and required them to present their (original)
titles for proper annotation. 14 Such request was,
however,
ignored.

24

On July 10, 1972, Carmen and Luis Masias sold 8734-B5-A to H. Serafica & Sons Corporation, 15 which was not
able to register the same because of the annotation in
TCT No. 9130 earlier made showing the sale in favor of
petitioners. Because of this, the corporation charged the
vendors with estafa before the City Fiscals Office, but
the
complaint
did
not
prosper.
Petitioners therefore filed, on December 8, 1973, a
complaint for quieting of title, annulment of deeds,
cancellation of titles, partition, and recovery of
ownership with damages, against herein private
respondents. The complaint alleged, among other things,
that petitioners succeeded in possessing only 12,000
square meters of the lot and needed 6,626 square meters
more to complete the total area purchased from Vitaliana
and
Agaton
in
1962.
In its decision dated June 20, 1994, the court a quo
concluded that the annotation on TCT No. 4484 of the
sale by Vitaliana and Agaton in favor of petitioners was
null and void because the latter failed to surrender the
owners duplicate copy of the title, in violation of Section
55 of the Land Registration Act (Act No. 496). 16 It
states:jgc:chanrobles.com.ph
"WHEREFORE, decision is hereby rendered in favor of
the defendants and against the plaintiffs hereby
dismissing plaintiffs complaint, and ordering the
plaintiffs to pay the defendants at the rate of P1,000.00
for each counsel for and as attorneys fees, to vacate Lot
No. 8734-B-5-A, and deliver the same to defendant H.
Serafica & Sons Corporation, and further ordering the
plaintiffs and defendants spouses Luis Masias and
Carmen Otadora to jointly and severally pay H. Serafica
& Sons Corporation actual damages at the rate of
P1,275.00 a year from July 10, 1972, until said land shall
have been delivered to H. Serafica & Sons Corporation
all of which amounts shall bear legal rate of interest from
the filing of the complaint until paid, with costs against
the
plaintiffs."cralaw
virtua1aw
library

On appeal, the appellate court made the following

findings:jgc:chanrobles.com.ph
". . . . However, it is clear from the documents presented,
particularly Exhibit C, that the certificate of title
mentioned therein as covering the land at the time of the
sale was Original Certificate of Title No. 26026. But it
appears from OCT No. 26026 that the owners thereof
were Felix Otadora and Leona Garbo. It may, therefore,
be deduced therefrom that at the time of the registration
of the deed, OCT No. 26026 had already been cancelled,
and the certificate of title covering the land sold was TCT
No. 4029 which was issued on March 29, 1962 (should
be March 26, 1962) and the inscription of the deed of sale
was made on March 29, 1962. OCT No. 26026 thereby
became inexistent, it having been already cancelled by
TCT(s) Nos. 4026 and 4029. It would have been against
the law to have the deed of sale registered in TCT No.
4029 without an order from the proper court authorizing
such registration, specifically because OCT No. 26026
had already undergone two cancellations, first by TCT
No. 4026 and then by TCT No. 4029. Appellants should
have filed the necessary petition with the proper court
asking that the Register of Deeds be authorized to
annotate the deed of sale executed by Agaton Otadora
and Vitaliana Otadora in their favor because OCT No.
26026 was omitted. The said title was, therefore, null and
void, and the same did not acquire the effect of a
constructive notice to the whole world of the interest over
the land in question of the plaintiffs-appellants. At most,
the deed of sale is merely a contract between the
plaintiffs-appellants and the vendors appearing therein
but without any binding effect upon their persons and
upon whom bad faith cannot be imputed.
The whole property has not been subdivided into specific
portions to be owned by each co-owners (sic). No
definite portion having been clearly allocated to them, the
plaintiffs-appellants cannot take possession of the land
allegedly sold to them. They should have demanded a
subdivision of the land, or forged an agreement with the
other co-owners as to which portion they would be
allowed to take possession while awaiting for (sic) the

actual subdivision thereof. But this, the plaintiffsappellants had not done, and their entry into the land
without those conditions previously complied with
amounts to a transgression on the property rights of the
other
co-owners.
Plaintiffs-appellants claim to have bought an area of
18,626 square meters out of the total share of the vendors
of 25,510 square meters but they had taken possession
over an area of 12,000 square meters. The deed of sale
did not specify what part of the 1/4 share of each of the
registered owners who executed the sale was sold to the
appellants."cralaw
virtua1aw
library
The Court of Appeals also agreed with the lower court
that H. Serafica & Sons Corporation was an innocent
purchaser for value as it was not required by law to go
beyond TCT No. 9130. which, on its face, appeared to be
unencumbered. It ruled that while the Pilapil spouses
"may have a cause of action against the other defendantsappellees, there is no ground or reason upon which the
same action would lie against appellee corporation."
Hence, the Court of Appeals affirmed the decision of the
lower court with the modification that the award of
damages of P1,275.00 a year from July 10, 1972 be
canceled.
In the instant petition for review on certiorari, petitioners
argue that the Court of Appeals erred in holding that: (a)
the annotation of the sale in their favor on TCT No. 4029
is ineffectual; (b) the deeds of sale respectively executed
by Agaton and Vitaliana in favor of Carmen and Maxima
are valid and superior to that executed earlier by Agaton
and Vitaliana in their favor; (c) their entry into Lot No.
8734-B-5 is illegal; (d) the sale between Maxima and her
children is valid; and (e) H. Serafica & Sons Corporation
is a buyer in good faith, when it was "at least negligent in
not verifying or inspecting the land or title of its
vendors." Petitioners contend that the liability of the
Otadoras who sold the same property twice should have
been determined to avoid multiplicity of suits and that by
upholding the award of attorneys fees, a travesty of
justice had been tolerated by the appellate court.

25

After examining the records of the case, as well as the

applicable law and jurisprudence, the Court is convinced
of
the
merits
of
the
petition.
The court below correctly ruled that the annotation of
Entry No. 10903 in the certificates of title was not made
in accordance with law. To affect the land sold, the
presentation of the deed of sale and its entry in the day
book must be done with the surrender of the owners
duplicate of the certificate of title. 17 Production of the
owners duplicate of the certificate of title is required by
Section 55 of Act No. 496 (now Section 53 of
Presidential Decree No. 1529), and only after compliance
with this and other requirements shall actual registration
retroact to the date of entry in the day book. 18
However, nonproduction of the owners duplicate of the
certificate of title may not invalidate petitioners claim of
ownership over the lot involved considering the factual
circumstances
of
this
case.
It is undisputed that after the sale of the lot to petitioners,
the same vendors sold the same property to persons who
cannot be considered in law to be unaware of the prior
sale
to
the
petitioners.
Thus, Agaton sold his one-fourth share of the lot to his
daughter Carmen, while Vitaliana also sold her onefourth share to her sister Maxima. Considering these
relationships and contrary to the findings of the courts
below, the vendees, Carmen and Maxima, cannot be
considered as third parties who are not bound by the prior
sale between Agaton and Vitaliana as vendors and
petitioners as vendees, because there is privity of
between them and their predecessors. 19 The reason for
that the validity of a title to a piece of property depends
on the buyers knowledge, actual or constructive, of a
prior sale. 20 While there is no direct proof that Carmen
and Maxima knew of the sale to petitioners, they are
deemed constructive knowledge thereof by virtue of their
relation
both
Agaton
and
Vitaliana.

Hence, it has become immaterial if the sale to pet was

properly annotated on the correct certificate of not. As we
held
in
Abuyo
v.
De
Suazo:
21
[t]he purpose of the registration is to give notice to third
person. And, privies are not third person. The vendors
heirs are his vitiate or annul the vendees right of
ownership conferred by such unregistered deed of sale.
It is not disputed that of the 25,510 square meter which
pertain to Vitaliana and Agaton as their combined
undivided share in Lot No. 8734-B-5, an area of 18,626
square meters had been sold to petitioners who, in turn,
were able to possess only 12,000 square meters thereof.
Thus, at most, Vitaliana and Agaton had a remainder of
6,884 square meters of undivided share which they could
have legally disposed of. As it turn out however, they
sold their entire individual one-fourth shares to Carmen
and Maxima who, as earlier concluded, were privy to the
prior
sale
to
petitioners.
Thus, when Carmen sold the property to H. Serafica and
Sons Corporation, she no longer had any rights of
dominion to transmit, since her own father who sold to
her the property had himself earlier relinquished his
ownership rights in favor of the petitioners. Accordingly,
Carmen transmitted no right to the corporation.
Under these circumstances, the corporation, having failed
to obtain relief through the criminal complaint filed
against the spouses Carmen Otadora and Luis Masias,
and having relied on the unencumbered transfer
certificate of title shown to it by the Masias spouses, is
entitled to damages of P1,275.00 a year from July 10,
1972, which was awarded to it by the trial court.
Needless to say, the corporation may file a case against
the assurance fund under Section 101 of the Land
Registration Act and Section 95 of PD. No. 1529; but to
obviate multiplicity of suits, the award of damages in its
favor
should
now
be
upheld.
As regards the sale made by Vitaliana to her sister
Maxima, the former can no longer transmit any property

rights over the subject lot when she sold it to her own
sister as she had previously sold the same property to
petitioners. Moreover as Vitalianas sister, Maxima was
actually a co-owner of Lot No. 8734-B-5 which, at the
time of the sale to petitioners, was not yet partitioned and
segregated. Maxima was, therefore, privy to the contract.
As defined in Basa v. Aguilar, 22 a third person, within
the meaning of Article 1620 of the of the Civil Code (on
the right of legal redemption of a co-owner) is anyone
who
is
not
a
co-owner.
On the matter of whether the rights of co-owners had
been transgressed by the sale to the petitioners, the trial
court erroneously ruled that there should be proof of
compliance with Article 1623 of the Civil Code requiring
the vendor of the property to give a written notice of sale
to the other co-owners. Said provision of law had been
rendered inutile by the fact that petitioners took
possession of the property immediately after the
execution of the deed of sale in their favor and continue
to possess the same. Since the fact of possession by the
petitioners had not been questioned by any of the coowners, the latter may be deemed to have knowledge of
the
sale.
In view of the foregoing, the sale to the petitioners must
be respected by the successors-in-interest of Agaton and
Vitaliana. Inasmuch as petitioners had managed to
possess only 12,000 square meters of the 18,625 square
meters they bought from Agaton and Vitaliana, the whole
area purchased by them should be taken from the shares
of Agaton and Vitaliana upon partition of the property.
WHEREFORE, the appealed decision is hereby
REVERSED and SET ASIDE. Consequently, petitioners
are declared the lawful owners of 18,626 square meters
of Lot 8734-B-5, which should be partitioned as prayed
for, and the lot of petitioners taken in equal portions from
the shares thereof of Agaton and Vitaliana or their
successors-in-interest. Transfer Certificates of Title Nos.
9129, 9130, 9094, and 9096 are hereby declared null and
void. Private respondents spouses Luis Masias and
Carmen Otadora are also ordered to pay actual damages

26

to H. Serafica & Sons Corporation at the rate of

P1,275.00 a year from July 10, 1972. Costs against
private respondents except H. Serafica Corporation.
SO ORDERED.

SECOND
[G.R.

No.

DIVISION
L-21151.

February

25,

1924.

In re will of Antonio Vergel de Dios, deceased.

RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA
JAVIER, Legatees-Appellants,
v.
FERNANDO
VERGEL DE DIOS ET AL., opponents-appellees.
Jesus Ocampo, Reyes & Imzon, Camus & Delgado
and
Gibbs
&
McDonough
for Appellants.
Eusebio Orense and Antonio M. Opisso for Appellees.
SYLLABUS
1. WILLS; NUMBERING OF PAGES; ATTESTATION
CLAUSE. Although the numbering of the sheet
containing the attestation clause does not appear in the
upper part thereof, yet if that numbering is found in its
text, as when it is said therein that the will consists of
three sheet actually used, correlatively numbered, besides
this one, that is to say, the sheet containing the attestation
clause, the requirement prescribed by the law is
substantially complied with, for if the will consists of
three sheets besides the one containing the attestation
clause, it is evident that the latter is the fourth page, that
is to say, that the document consists of four sheets.
2. ID.; ATTESTATION CLAUSE; THE LATTER MUST
STATE COMPLIANCE WITH REQUIREMENTS;
SUFFICIENCY OF. The attestation clause must state,
among other things, that the testator signed on the margin
of each sheet of the will in the presence of the witnesses
and the latter in the presence of each other; and such a

fact cannot be proven by any other proof than the

attestation clause itself. This does not mean, however,
that to express it, the same words used in the statute must
be employed, for if the fact appears in any manner
intelligible from the attestation clause, the latter would be
sufficient and valid. Thus the attestation clause in
question is sufficient in this respect which says: ". . . and
he (the testator) signed at the bottom of the aforesaid will
in our presence, and at his request we also signed our
names as witnesses in his presence and that of each other,
and finally, the testator, as well as we, his witnesses,
signed in the same manner on the left margin of each and
everyone of its sheets," for the phrase, in the same
manner, means that the testator signed in the presence of
the witnesses, and the latter in his presence and that of
each
other.

having

3. ID.; ID.; SIGNATURE OF TESTATOR. The

signature of the testator is not necessary in the attestation
clause. (Abangan v. Abangan, 40 Phil., 476.)

(d) He did not sign it in the presence of any witnesses.

4. ID.; ID.; DISTINGUISHED; NECESSITY OF BOTH.

The will is distinct and different from the attestation
clause, although both are necessary to the validity of the
will. The will proper must meet all the requirements
enumerated in the second paragraph of section 618 of the
Code of Civil Procedure and the text of the attestation
clause must state compliance with the requirements
prescribed for the will.

DECISION

ROMUALDEZ, J. :

The question in this case is as to the validity of the

document Exhibit A as a will, which was propounded by
Ramon J. Fernandez for probate, and contested by
Fernando Vergel de Dios and Francisco, Ricardo and
Virgilio Rustia, the Court of First Instance of Manila

denied

its

probate.

The applicant takes this appeal, assigning error to the

action of the lower court in holding the attestation fatally
defective and in not finding Act No. 2645 void.
The facts attributed to the will by the contestants are as
follows, to wit:chanrob1es virtual 1aw library
(a) It was not sufficiently proven that the testator knew
the
contents
of
the
will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as
his
last
will.

(e) The witnesses did not sign it in the presence of the

testator, or of each other, nor with knowledge on the part
of the testator that they were signing his will.
(f) The witnesses did not sign the attestation clause
before
the
death
of
the
testator.
(g) This clause was written after the execution of the
dispositive part of the will and was attached to the will
after
the
death
of
the
testator.
(h) The signatures of the testator on page 3 of Exhibit A
are
not
authentic.
The evidence sufficiently shows that when Attorney
Lopez Lizo read the will to the testator, the latters mind
was perfectly sane and he understood it; that he signed all
the pages of the will proper, although he did not sign the
page containing the attestation clause; that while he did
not personally call the witnesses, yet the latter were
invited by Attorney Lopez Lizo to act as such in his
presence. The law does not require that the testator
precisely be the person to request the witnesses to attest
his will. It was also sufficiently established in the record,

27

besides being stated in the attestation clause, that the

testator signed the will in the presence of the three
witnesses and that the latter, in turn, signed it in the
presence of the testator and of each other, the testator
knowing that the witnesses were signing his will; that the
witnesses signed the attestation clause before the death of
the testator; that this clause, with the names of the
witnesses in blank, was prepared before the testator
signed the will, and that the sheet containing said clause,
just as those of the will proper, was a loose sheet, and that
all the four sheets of which the will Exhibit A was
actually composed were kept together and are the very
ones presented in this case; and finally, that the signatures
of the testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such
defects as those mentioned by the opponents, and it
having been proven that the testator executed said will in
a language known by him and consciously, freely and
spontaneously, it would seem unnecessary to go further,
and the matter might be brought to a close right here, by
holding the will in question valid and allowable to
probate, were it not for the fact that the trial court and the
opponents questioned the sufficiency and validity of the
attestation clause because the sheet on which it is written
is not numbered, and it is not stated there that the testator
signed on the margin of each sheet of the will in the
presence of the three witnesses, or that the latter signed it
in the presence of the testator and of each other, specially
because said attestation clause is not signed by the
testator either at the margin or the bottom thereof.
As to the numbering of the sheet containing the
attestation clause, it is true that it does not appear on the
upper part of the sheet, but it does appear in its text, the
pertinent part of which is copied hereinafter, with the
words, having reference to the number of sheets of the
will, underscored, including the page number of the
attestation:jgc:chanrobles.com.ph
". . . We certify that the foregoing document written in
Spanish, a language known by the testator Antonino
Vergel de Dios, consisting of three sheets actually used,

correlatively enumerated, besides this sheet . . ."cralaw

virtua1aw
library
If, as stated in this clause, the foregoing document
consists of three sheets, besides that of the clause itself,
which is in singular, it is clear that such a sheet of the
attestation clause is the fourth and that the will, including
said sheet, has four sheets. This description contained in
the clause in question constitutes substantial compliance
with the requirements prescribed by the law regarding the
paging. So it was held by this Court in the case of
Abangan v. Abangan (40 Phil., 476), where the sheet
containing the attestation, as well as the preceding one,
was also not paged. Furthermore, the law, as we shall see
later on, does not require that the sheet containing
nothing but the attestation clause, wholly or in part, be
numbered or paged. Consequently this lack of paging on
the attestation sheet does not take anything from the
validity
of
the
will.
Turning now to the question whether or not in this clause
it is stated the testator signed on the margin of each sheet
of the will, in the presence of the witnesses and the latter
in the presence of each other, let us see what is said in
said clause on this point, and to this end its pertinent part
is
hereinafter
transcribed
and
is
as
follows:jgc:chanrobles.com.ph
". . . and he (the testator) signed at the bottom of the
aforesaid will in our presence and we at his request did
the same in his presence and in that of each other as
witnesses to the will, and lastly, the testator, as well as
we, as witnesses, signed in the same manner on the left
margin
of
each
sheet."
(Italics
ours.)
The underscored phrase "in the same manner" cannot in
the instant case mean, and it in fact means nothing, but
that the testator and the witnesses signed on the left
margin of each sheet of the will "in the same manner" in
which they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and the latter in
the presence of the testator and of each other. This phrase
in the same manner cannot, in view of the context of the

pertinent part, refer to another thing, and was used here

as a suppletory phrase to include everything and avoid
the repetition of a long and difficult one, such as what is
meant by it. The same section 618 of the Code of Civil
Procedure, in order to avoid the repetition of the same
long phrase about the testator having signed in the
presence of the witnesses and the latter in the presence of
each other, resorts to a similar expression in the second
paragraph and says, "as aforesaid."cralaw virtua1aw
library
Concerning the absolute absence of the signature of the
testator from the sheet containing the attestation clause,
this point was already decided in the above cited case of
Abangan v. Abangan, where this court held
that:jgc:chanrobles.com.ph
"The testators signature is not necessary in the
attestation clause because this, as its name implies,
appertains only to the witnesses and not to the
testator."cralaw
virtua1aw
library
In that case of Abangan v. Abangan it was held that the
signature of the testator is not necessary in the attestation
clause, but the theory is not announced that such a clause
is unnecessary to the validity of the will.
For this reason such doctrine does not annul the judgment
in the case of Uy Coque v. Navas L. Sioca (43 Phil., 405),
where in effect the doctrine, among others, was laid down
that the attestation clause is necessary to the validity of
the will. One of the points on which greatest stress was
laid in that case of Uy Coque is that the requirements of
the law regarding the number of the pages used, the
signing of the will and of each of its pages by the testator
in the presence of three witnesses, and the attestation and
signing of the will and of each its pages by the testator in
the presence of three witnesses, and the attestation and
signing of the will and of each of its pages by the
witnesses in the presence of each other cannot be proven
aliunde but by the attestation clause itself which must
expressed the compliance of the will with such
requirements. But it was not held in that case of Uy

28

Coque that the signature of the testator was necessary in

the attestation clause, nor was such point discussed there,
which was the point at issue in the case of Abangan v.
Abangan,
supra.

also sign, as aforesaid, each and every page thereof, on

the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each
sheet."cralaw
virtua1aw
library

The appellees, however, argue that such clause in the case

of Abangan v. Abangan begins at the bottom and on the
same sheet in which the testamentary provisions
terminated, that is to say, the will properly speaking.
Even then if it is intended to commit misrepresentation or
fraud, which are things that with the requirements of the
law for the making and attesting of wills it is intended to
avoid, it is just the same that the clause; as in the case of
Abangan v. Abangan, begins at the bottom of the will
properly speaking, as, like the case before us, it is wholly
contained in a separate sheet. The fact is that this separate
sheet, containing the attestation clause wholly or in part,
is not signed in any place by the testator in the case.

These are the solemnities that must surround the

execution of the will properly speaking, without any
reference whatsoever to the attestation clause not treated
in this second paragraph. It is in this second paragraph
which deals only with the will (without including the
attestation clause), that the signature or name of the
testator and those of the witnesses are mentioned as
necessary on the left margin of each and everyone of the
sheets of the will (not of the attestation clause), as well as
the paging of said sheets (of the will, and not of the
attestation clause which is not yet spoken of).

Section 618 of the Code of Civil Procedure, as amended

by Act No. 2645, contains three paragraphs, of which the
first enumerates in general terms the requirements to be
met by a will executed after said Code took effect, to wit,
that the language or dialect in which it is written be
known by the testator, that it be signed by the latter or by
another person in the name of the testator by his express
direction and in his presence, and that it be attested and
signed by three or more credible witnesses in the
presence of the testator and of each other.
These general rules are amplified in the next two
paragraphs as to the special requirements for the
execution of the will by the testator and the signing
thereof by the witnesses, with which the second
paragraph of the section deals, and as to the attestation
clause treated in the third and last paragraph of said
section
618.
For this reason the second paragraph of this section 618
says:jgc:chanrobles.com.ph
"The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall

Now, are the signatures of the testator and the paging of

the will also necessary in the attestation clause? Let us
see the last paragraph of this section 618 of the Code
which already deals with the requirements for the
attestation clause. This last paragraph reads
thus:jgc:chanrobles.com.ph
"The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other."cralaw
virtua1aw
library
As may be seen this last paragraph refers to the contents
of the text of the attestation, not the requirements or
signatures thereof outside of its text. It does not require
that the attestation be signed by the testator or that the
page or sheet containing it be numbered.

complement, without which it cannot be probated and

with which only and not aliunde (Uy Coque v. Navas L.
Sioca, supra) may the requirements to be stated in its text
be proven. The attestation clause must be prepared and
signed, as in the instant case, on the same occasion on
which the will is prepared and signed, in such a way that
the possibility of fraud, deceit or suppression of the will
or the attestation clause be reduced to a minimum; which
possibility always exists, as experience shows, in spite of
the many precautions taken by the legislator to insure the
true and free expression of ones last will.
Second. That the will is distinct and different from the
attestation, although both are necessary to the validity of
the will, similar, in our opinion, to a document which is
not public so long as it is not acknowledged before a
notary, the document being a distinct and different thing
from the acknowledgment, each of which must comply
with different requisites, among which is the signature of
the maker which is necessary in the document but not in
the acknowledgment and both things being necessary to
the
existence
of
the
public
document.
Third. That the will proper must meet the requirements
enumerated in the second paragraph of section 618 of the
Code
of
Civil
Procedure.
Fourth. That the text of the attestation clause must
express compliance with the requirements prescribed for
the
will.
In the case at bar the attestation clause in question states
the requirements prescribed for the will were complied
with, and this is enough for it, as such attestation clause,
to be held as meeting the requirements prescribed by the
law
for
it.

force it
library

The fact that in said clause the signature of the testator

does not appear does not affect its validity, for, as above
stated, the law does not require that it be signed by the
testator.

First. That the will must have an attestation clause as a

We find no merit in the assignment of error raising the

From this analysis

appears:chanrob1es

of our
virtual

law in
1aw

29

question as to the validity of Act No. 2645, which is

valid. For the purposes of this decision, it is not necessary
to reason out this conclusion, it being sufficient for the
adjudication of this case to hold the first error assigned
by the appellants to have been demonstrated.
The foregoing conclusions lead us to hold, as we do
hereby hold, that the document Exhibit A, as the last will
and testament of the deceased Antonino Vergel de Dios,
meets all the requirements prescribed by the law now in
force and therefore it must be allowed to probate as
prayed
for
by
the
petitioner.
The judgment appealed from is reversed, and it is ordered
that the lower court proceed with the probate of the will
Exhibit A in accordance with law, without express
pronouncement
as
to
costs.
So
ordered.
Street, Malcolm, Avancea, and Johns, JJ., concur.
EN BANC
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitionerappellee, vs. AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable
Ramon Diokno for appellee.

for

appellant.

TUASON, J.:
In the Court of First Instance of Batangas the appellant
opposed unsuccessfully the probate of what purports to
be the last will and testament (Exhibit A) of Don Sixto
Lopez, who died at the age of 83 in Balayan, Batangas,
on March 3, 1947, almost six months after the document
in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to
wit: (1) that the deceased never executed the alleged will;

(2) that his signature appearing in said will was a forgery;

(3) that at the time of the execution of the will, he was
wanting in testamentary as well as mental capacity due to
advanced age; (4) that, if he did ever execute said will, it
was not executed and attested as required by law, and one
of the alleged instrumental witnesses was incapacitated to
act as such; and it was procured by duress, influence of
fear and threats and undue and improper pressure and
influence on the part of the beneficiaries instituted
therein, principally the testator's sister, Clemencia Lopez,
and the herein proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud or
trick.chanroblesvirtualawlibrary chanrobles virtual law
library
In this instance only one of these objections is reiterated,
formulated in these words: "That the court a quo erred in
holding that the document Exhibit "A" was executed in
all particulars as required by law." To this objection is
added the alleged error of the court "in allowing the
petitioner to introduce evidence that Exhibit "A" was
written
in
a
language
known
to
the
decedent after petitioner rested his case and over the
vigorous
objection
of
the
oppositor.chanroblesvirtualawlibrary chanrobles virtual
law library
The will in question comprises two pages, each of which
is written on one side of a separate sheet. The first sheet
is not paged either in letters or in Arabic numerals. This,
the
appellant
believes,
is
a
fatal
defect.chanroblesvirtualawlibrary chanrobles virtual law
library
The purpose of the law in prescribing the paging of wills
is guard against fraud, and to afford means of preventing
the substitution or of defecting the loss of any of its

pages. (Abangan vs. Abangan, 40 Phil., 476.) In the

present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms
of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is
clearly identified as the first page by the internal sense of
its contents considered in relation to the contents of the
second page. By their meaning and coherence, the first
and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before
the attestation clause, which starts at the bottom of the
preceding page. Furthermore, the unnumbered page
contains the caption "TESTAMENTO," the invocation of
the Almighty, and a recital that the testator was in full use
of his testamentary faculty, - all of which, in the logical
order of sequence, precede the direction for the
disposition of the marker's property. Again, as page two
contains only the two lines above mentioned, the
attestation clause, the mark of the testator and the
signatures of the witnesses, the other sheet can not by any
possibility be taken for other than page one. Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de Dios, 46
Phil.,
922
are
decisive
of
this
issue.chanroblesvirtualawlibrary chanrobles virtual law
library
Although not falling within the purview and scope of the
first assignment of error, the matter of the credibility of
the witnesses is assailed under this heading. On the
merits we do not believe that the appellant's contention
deserves serious consideration. Such contradictions in the
testimony of the instrumental witnesses as are set out in
the appellant's brief are incidents not all of which every
one of the witnesses can be supposed to have perceived,
or to recall in the same order in which they occurred.

30

Everyday life and the result of investigations made in the

field of experimental psychology show that the
contradictions of witnesses generally occur in the details
of a certain incident, after a long series of questioning,
and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those
who witness an incident are impressed in like manner, it
is but natural that in relating their impressions they
should not agree in the minor details; hence, the
contradictions in their testimony. (People vs. Limbo, 49
Phil., 99.)
The testator affixed his thumbmark to the instrument
instead of signing his name. The reason for this was that
the testator was suffering from "partial paralysis." While
another in testator's place might have directed someone
else to sign for him, as appellant contends should have
been done, there is nothing curious or suspicious in the
fact that the testator chose the use of mark as the means
of authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring a will
to be "signed" is satisfied if the signature is made by the
testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil.,
108; 28 R. C. L., 117.)chanrobles virtual law library
With reference to the second assignment of error, we do
not share the opinion that the trial court communicated an
abuse of discretion in allowing the appellant to offer
evidence to prove knowledge of Spanish by the testator,
the language in which the will is drawn, after the
petitioner had rested his case and after the opponent had
moved for dismissal of the petition on the ground of
insufficiency of evidence. It is within the discretion of the
court whether or not to admit further evidence after the
party offering the evidence has rested, and this discretion
will not be reviewed except where it has clearly been
abused. (64 C. J., 160.) More, it is within the sound

discretion of the court whether or not it will allow the

case to be reopened for the further introduction of
evidence after a motion or request for a nonsuit, or
a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling
on the request, motion, or demurrer, or has granted it or
has denied the same, or after the motion has been
granted, if the order has not been written, or entered upon
the minutes or signed. (64 C. J., 164.)chanrobles virtual
law library
In this jurisdiction this rule has been followed. After the
parties have produced their respective direct proofs, they
are allowed to offer rebutting evidence only, but, it has
been held, the court, for good reasons, in the furtherance
of justice, may permit them to offer evidence upon their
original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs.
Alviar, 36 Phil., 804.) So, generally, additional evidence
is allowed when it is newly discovered, or where it has
been omitted through inadvertence or mistake, or where
the purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545; 64 C. J.,
160-163.) The omission to present evidence on the
testator's knowledge of Spanish had not been deliberate.
It
was
due
to
a
misapprehension
or
oversight.chanroblesvirtualawlibrary chanrobles virtual
law library
Although alien to the second assignment of error, the
appellant impugns the will for its silence on the testator's
understanding of the language used in the testament.
There is no statutory requirement that such knowledge be
expressly stated in the will itself. It is a matter that may
be established by proof aliunde. This Court so impliedly

ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the

probate of a will written in Tagalog was ordered although
it did not say that the testator knew that idiom. In fact,
there was not even extraneous proof on the subject other
than the fact that the testator resided in a Tagalog region,
from which the court said "a presumption arises that said
Maria
Tapia
knew
the
Tagalog
dialect.chanroblesvirtualawlibrary chanrobles virtual law
library
The order of the lower court ordering the probate of the
last will and testament of Don Sixto Lopez is affirmed,
with costs.chanroblesvirtualawlibrary chanrobles virtual
law library
Paras, Pablo, Perfecto, Bengzon, Briones and Padilla,
JJ., concur.
EN
[G.R.

BANC
No.

L-2415.

July

31,

1950.]

Testate estate of the late Paula Toray. EUSTAQUIA

TENEFRANCIA, Petitioner-Appellant,
v.
ROSA
ABAJA, Oppositor-Appellee.
Ditching

&

Ditching

for Petitioner-Appellant.

Romeo

C.

Castillo

for Oppositor-Appellee.

SYLLABUS
1. WILLS; ATTESTATION CLAUSE FAILS TO STATE
THAT TESTATOR SIGNED WILL IN THE PRESENCE
OF WITNESSES. Among the formalities prescribed
by law (section 618 of Act No. 190, as amended by Act
No. 2645) to a valid will is the requirement that the
attestation clause should state "the fact that the testator
signed the will and every page thereof, or caused some

31

other person to write his name, under his express

direction, in the presence of three witnesses." This
requirement was not complied with in the present case,
for the attestation clause fails to state that fact.
2. ID.; WHAT IS MEANT BY ATTESTATION
CLAUSE. By the attestation clause is meant "that
clause wherein the witnesses certify that the instrument
has been executed before them, and the manner of the
execution of the same." (Black, Law Dictionary.) It is
signed not by the testator but by the witnesses, for it is a
declaration made by the witness and not by the testator.
And the law is clear that it is the attestation clause that
must contain a statement, among others that the testator
signed the will in the presence of the witnesses. Without
that statement, the attestation clause is fatally defective.

DECISION

REYES, J.:

This is an appeal from an order of the Court of First

Instance of Negros Occidental denying probate of a will.
The will in question purports to have been executed in
August, 1943, by Paula Toray, who died the following
month. Presented for probate by one of the legatees, the
herein appellant Eustaquia Tenefrancia, it was opposed
by Rosa Abaja, daughter of the deceased Eulogia Abaja,
instituted heir in an earlier will executed by the same
testatrix and her deceased husband. The lower court
disallowed the will on the ground that it was not executed
in accordance with law in that the attestation clause did
not state that the testatrix signed the will in the presence
of
the
instrumental
witnesses.
Among the formalities prescribed by law (section 618 of
Act 190, as amended by Act No. 2645) to a valid will is
the requirement that the attestation clause should state

"the fact that the testator signed the will and every page
thereof, or caused some other person to write his name,
under his express direction, in the presence of three
witnesses." This requirement was not complied with in
the present case, for the attestation clause fails to state
that fact. This is obvious from the following agreed
translation
of
the
said
attestation
clause:jgc:chanrobles.com.ph
"Nosotros Antonio T. Abanilla, Juan G. Mission y Juan
Tullao, todos vecinos del Barrio Inayauan, Cawayan,
Negros Occidental, Filipinas, testigos de este testamento,
testificamos que Paula Toray, la testadora que declaro que
este es su testamento o ltima voluntad y que cuando
otorgo este testamento, ella estaba en su sano y cabal
juicio, habiendo hecho constar el mismo, en dos pliegos
de papel, firmados por nosotros en presencia de la
testadora, y de nosotros tres testigos en todos los peligros
de
este
testamento."cralaw
virtua1aw
library
It is pointed out, however, that the attestation clause
states that the testatrix declared in the presence of the
three witnesses that the document in question was her last
will or testament, and it is argued that this testament
taken together with the preceding clause which reads:
"En fe de todo lo cual firmo con mi nombre este mi
testamento o ltima voluntad, escrito en dialecto visayo
que es el dialecto que poseo y hablo, en Inayauan,
comprensin de Cawayan, Filipinas, hoy a 16 de Agosto
de 1943," expresses the idea that the testatrix signed the
will in the presence of the witnesses. The argument is not
only far-fetched but it also overlooks the fact that it is in
the attestation clause signed the will in the presence of
the subscribing witnesses, since that is one of the
statements by law required to be embodied in the
attestation clause. The words above quoted, which, in the
will in question, are written above the signature of the
testator and come before the attestation clause, do not
form a part of the latter. By the attestation clause is meant
"that clause wherein the witnesses certify that the
instrument has been executed before them, and the
manner of the execution of the same." (Black, Law
Dictionary.) It is signed not by the testator but by the

witnesses, for it is a declaration made by the witnesses

and not by the testator. And the law is clear that it is the
attestation clause that must contain a statement, among
others, that the testator signed the will in the presence of
the witnesses. Without that statement, the attestation
clause
is
fatally
defective.
This defect is not cured by proof aliunde or even by a
judicial finding based upon such proof that the testator
did in fact sign the will in the presence of the subscribing
witnesses. That is a fact required by law to be stated in
the attestation clause itself, and it is settled that where it
is not so stated it cannot be established by evidence
aliunde, and that where such evidence has been admitted,
even without opposition, it should not be given the effect
intended. (Uy Coque v. Navas L. Sioca, 43 Phil., 405;
Quinto v. Morata, 54 Phil., 481.) In the case last cited this
Court had the following to say:jgc:chanrobles.com.ph
"It is vigorously contended on behalf of the appellant,
that the alleged defect of the attestation clause 1 has been
cured by oral evidence, which was admitted without
opposition on the part of the appellee. This contention
cannot be sustained. The doctrine of this court with
reference to statute of frauds is not applicable to wills.
The statute of frauds relates to contracts and agreements.
The subject of wills and testaments and the formalities
surrounding their execution are governed by separate and
specific
provisions
of
Act
No.
190.
"An examination of section 618 of Act No. 190, prior to,
and after its amendment by Act No. 2645, shows clearly
that the legislature intended to exclude evidence aliunde
tending to establish that the will has been executed and
attested in conformity with the requirements of the law,
where such compliance does not appear on the face of the
will itself. Prior to its amendments, section 618 contained
the following saving clause: But the absence of such
form of attestation shall not render the will invalid if it as
proven that the will was in fact signed and attested as in
this
section
provided.
"The most outstanding feature of the amendment of said

32

section 618 by Act No. 2645 is the elimination of said

saving clause and the greater emphasis laid on the
formalities as to signatures and the attestation clause.
There can be no doubt, therefore, that the intention of the
legislature, in eliminating said clause, was to exclude
evidence aliunde, and that where such evidence was
admitted without opposition, it should not be given effect
and thus defeat the manifest intention of the legislature in
amending
said
section
618.

allowed the will in question, for under section 618 of Act

No. 190, as amended by Act No. 2645, no will shall be
valid to pass any estate, real or personal, nor charge or
affect the same unless the attestation clause conforms to
the requirements therein provided, and the imperative
language of the Rules of Court (Rule 77, section 9 [a])
directs that the will "shall be disallowed" if not executed
and "attested as required by law."cralaw virtua1aw
library

"Section 618 of Act No. 190, as amended, should be

given a strict interpretation. In the case of Uy Coque v.
Navas L. Sioca (43 Phil., 405) this court, speaking of the
construction to be given to said section,
said:jgc:chanrobles.com.ph

In view of the foregoing, the order appealed from is

affirmed,
with
costs
against
the Appellant.

"Statutes prescribing the formalities to be observed in the

execution of wills are very strictly construed. As stated in
40 Cyc., at page 1097, A will must be executed in
accordance with the statutory requirements; otherwise it
is entirely void. All these requirements stand as of equal
importance and must be observed, and courts cannot
supply the defective execution of a will. No power or
discretion is vested in them, either to superadd other
conditions or dispense with those enumerated in the
statutes." (Uy Coque v. Navas L. Sioca, 43 Phil., 405,
407.)

Ozaeta, Pablo, Bengzon, Tuason and Montemayor, JJ.,

concur.
FIRST
DIVISION
[G.R.

No.

46097.

October

18,

1939.]

TEOFILA ADEVA VIUDA DE LEYNEZ, Petitioner,

v.
IGNACIO
LEYNEZ, Respondent.
Conrado V.
for Petitioner.
Ilao

&

Sanchez

and

Enriquez

Ambrosio

Padilla

for Respondent.

2. ID.; ID.; ID. An attestation clause is made for the

purpose of preserving, in permanent form, a record of the
facts attending the execution of the will, so that in case of
failure of the memory of the subscribing witnesses, or
other casualty, they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) will, therefore, should not be
rejected where its attestation clause serves the purposes
of the law. The law-making body, in recognition of the
dangers to which testamentary dispositions are apt to be
subject in the hands of unscrupulous individuals, has
surrounded the execution of wills with every solemnity
deemed necessary to safeguard it. This purpose was
indicated when our legislature provided for the exclusion
of evidence aliunde to prove the due execution of the
will. We should not, however, attribute the prohibition as
indicative of a desire to impose unreasonable restraint or
beyond that reason and justice permit. It could not have
been the intention of the legislature in providing for the
essential safeguards in the execution of a will to shackle
the very right of testamentary disposition which the law
recognizes and holds sacred. The pronouncement of this
court in Abangan v. Abangan (40 Phil., 476, 479).
expresses the sound rule to which we have recently
adhered in principle (Rodriguez v. Yap, G. R. No. 45924,
promulgated May 18, 1939; and Grey v. Fabie, G. R. No.
451G0, promulgated May 23, 1939).

SYLLABUS
It is also urged that the lower court should not have
entertained the opposition of Rosa Abaja, who had no
legal interest in the proceeding. But it does not appear
that timely objection to the said opposition was made in
the court below, and it is settled that the mere fact that a
stranger has been permitted to oppose the allowance of a
will is not a reversible error and does not invalidate the
proceedings where no objection is interposed by any of
the parties in interest. (Paras v. Narciso, 35 Phil., 244.) It
is true that in the course of Rosa Abajas declaration,
counsel for appellant made some manifestation tending to
question the admissibility of her testimony. But it is not
clear that the remark was meant to be an objection to the
opposition itself. And in any event, even without
opposition, the lower court could not have legally

1. WILLS; PROBATE; ATTESTATION CLAUSE.

The requirement that the attestation clause, among other
things, shall state "that the testator signed the will and
every page thereof in the presence of three witnesses, and
that the witnesses signed the will in the presence of the
testator and of each other," is sufficiently complied with,
it appearing that the testator and the witnesses signed
each and every page of the will according to the
stipulation of the parties (Record on Appeal, stipulation,
pp. 10, 14, 15); and this fact being shown in the will
itself, and there being, furthermore, no question raised as
to the authenticity of the signatures of the testator and the
witnesses.

DECISION

LAUREL, J.:

This is a petition for a writ of certiorari to review the

decision of the Court of Appeals affirming the decision of
the Court of First Instance of Mindoro denying probate of
the will of the deceased Valerio Leynez, on the ground
that its attestation clause does not conform to the
requirements of section 618, as amended, of the Code of
Civil
Procedure.

33

The attestation clause of the will is worded as

follows:jgc:chanrobles.com.ph

establecer por medio de su prueba aliunde."cralaw

virtua1aw
library

"Suscrito y declarado por el testador Valerio Leynez,

como su ultima voluntad y testamento en presencia de to
dos y cada uno de nosotros, y a ruego de dicho testador,
firmamos el presente cada uno en presencia de los otros,
o de los demas y de h del mismo testador Valerio Leynez.
El testamento consta de dos (2) paginas
solamente."cralaw
virtua1aw
library

Against this conclusion of the Court of Appeals,

petitioner puts forward the contention that it has decided
a question of substance in a way not probably in accord
with the law and the applicable decisions of this court
(Rule 47, paragraph e[1] of Supreme Court.) The rule of
liberal construction of the applicable law should,
petitioner avers, be held to apply in the case at bar, and in
support of her contention she invokes a long array of
cases (Abangan v. Abangan, 40 Phil., 476; Avera v.
Garcia and Rodriguez, 42 Phil., 145; Aldaba v. Roque, 43
Phil., 378; Unson v. Abella, 43 Phil., 494; Fernandez v.
Vergel de Dios, 46 Phil., 922; Nayve v. Mojal, 47 Phil.,
152; De Gala v. Gonzalez, 53 Phil., 104; Rey v.
Cartagena, 56 Phil., 282; Dichoso de Ticson v. De
Gorostiza, 57 Phil., 437; Sebastian v. Paganiban, 59
Phil., 653; De Guzman v. Celestino, G. R. No. 35273,
April 25, 1932; Policarpio v. Baltazar, G. R. No. 36349,
November 14, 1932; Malate v. Olea, G. R. No. 36154,
December 16, 1932; In re Estate of Jennings, 1933, G. R.
No. 38758). To this line of cases those of Rodriguez v.
Yap, G. R. No. 45924, May 18, 1939, and Grey v. Fabie,
G. R. No. 45160, May 23, 1939, may perhaps be added.
Respondent, on the other hand, equally invokes a number
of cases wherein, he contends, the rule of strict
construction was made to prevail. (Uy Coque v. Navas L.
Sioca, 43 Phil., 405; In re Estate of Neuark, 46 Phil., 841;
Sano v. Quintana, 48 Phil., 506; Gumban v. Gorecho, 50
Phil., 30; Quinto v. Mcrata, 54 Phil., 481; Rodriguez v.
Alcala,
55
Phil.,
150.)

The question presented is, under section 618, as

amended, of the Code of Civil Procedure, is this
attestation clause legally sufficient? The pertinent portion
of
this
section
of
the
Code
is
as
follows:jgc:chanrobles.com.ph
". . . The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each
other."cralaw
virtua1aw
library
The alleged defect in the attestation clause of the
controverted will is that it fails to state that the testator
and the three witnesses signed each and every page of the
will in the manner prescribed by law, because it merely
states "firmamos el presente cada uno en presencia de los
otros, o de los demas y de la del mismo testador Valerio
Leynez." In deciding this question the Court of Appeals,
however,
ruled:jgc:chanrobles.com.ph
"A la luz de las jurisprudencias arriba citadas, en la
clausula de atestiguamiento discutida en el asunto de
autos, no encontramos un cumplimiento substantial del
requisito exigido por la ley, de que en ella se haga constar
que el testador y los testigos han firmado unos en
presencia de otros, todas y cada una de las paginas usadas
del testamento, requisito que no se puede comprobar
mediante un examen del testamento, ni se puede

This Court has already taken notice of these different

views when, in Dichoso de Ticson v. De Gorostiza (57
Phil., 437, 439-440), it frankly made the following
observation: "The truth is that there have been noticeable
in the Philippines two divergent tendencies in the law of
wills the one being planted on strict construction and
the other on liberal construction. A late example of the
former views may he found in the decision in Rodriguez
v. Alcala ([1930], 55 Phil., 150), sanctioning a literal
enforcement of the law. The basic case in the other

direction, predicated on reason, is Abangan v. Abangan

([1919], 40 Phil., 476), oft-cited approvingly in later
decisions." It is fairness to recognize the existence of
opposing currents of legal thought, a situation which
perhaps has brought about a certain degree of confusion
in this field. It is also fairness to avow, however, that a
more careful examination of the cases will show that,
while the two tendencies mentioned is easily discernible,
the conflict in many cases is more apparent than real, and
the variance, if at all, in the application of the principles
involved was due in some instances to the amendment of
the law and in other instances to the marked
differentiation of facts and the consequent personal or
collective
criteria
in
particular
cases.
We have taken pains to examine the numerous cases
relied upon by the petitioner and those relied upon by the
respondent, and while we do not deem it necessary to
make a detailed comparison between them, we find no
difficulty in selecting what we consider is the reasonable
rule to apply in the case at bar. It is, of course, not
possible to lay down a general rule, rigid and inflexible,
which would be applicable to all cases. More than
anything else, the facts and circumstances of record are to
be considered in the application of any given rule. If the
surrounding circumstances point to a regular execution of
the will, and the instrument appears to have been
executed substantially in accordance with the
requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the
document may suffer from some imperfection of
language, or other non-essential defect. This, in our
opinion, is the situation in the present case, and we,
therefore, hold that the requirement that the attestation
clause, among other things, shall state "that the testator
signed the will and every page thereof in the presence of
three witnesses, and that the witnesses signed the will in
the presence of the testator and of each other," is
sufficiently complied with, it appearing that the testator
and the witnesses signed each and every page of the will
according to the stipulation of the parties. (Record on
Appeal, stipulation, pp. 10, 14, 15); and this fact being

34

shown in the will itself, and there being, furthermore, no

question raised as to the authenticity of the signature of
the
testator
and
the
witnesses.
An attestation clause is made for the purpose of
preserving, in permanent form, a record of the facts
attending the execution of the will so that in case of
failure of the memory of the subscribing witnesses, or
other casualty they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause series the purpose of
the law. The lawmaking body, in recognition of the
dangers to which testamentary dispositions are apt to be
subject in the hands of unscrupulous individuals, has
surrounded the execution of wills with every solemnity
deemed necessary to safeguard it. This purpose was
indicated when our legislature provided for the exclusion
of evidence aliunde to prove the due execution of the
will. We should not, however, attribute the prohibition as
indicative of a desire to impose unreasonable restraint or
beyond what reason and justice permit. It could not have
been the intention of the legislature in providing for the
essential safeguards in the execution of a will to shackle
the very right of testamentary disposition which the law
recognizes and holds sacred. The pronouncement of this
Court in Abangan v. Abangan (40 Phil., 476, 479),
expresses the sound rule to which we have recently
adhered in principle. (Rodriguez v. Yap, G. R. No. 45924,
promulgated May 18, 1939; and Grey v. Fabie, G. R. No.
45160,
promulgated
May
23,
1939):jgc:chanrobles.com.ph
"The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely

unnecessary, useless and frustrative of the testators last

will, must be disregarded."cralaw virtua1aw library
It follows that the writ of certiorari should be, as it is
hereby, granted and the judgment of the Court of Appeals
reversed, with the results that the controverted will,
Exhibit A, of the deceased Valerio Leynez, shall be
admitted to probate. So ordered, with costs against the
respondent
appellee.
So
ordered.
Avancea, C.J., Villa-Real,
Concepcion, J.J., concur.

Imperial,

Diaz,

and

FIRST DIVISION
G.R.
No.
L-36033
November
5,
1982
IN THE MATTER OF THE PETITION FOR THE
PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased):
APOLONIO
TABOADA, Petitioner,
vs. HON. AVELINO S. ROSAL, as Judge of Court of
First Instance of Southern Leyte, (Branch III,
Maasin), Respondent.
Erasmo M. Diola counsel for petition.chanrobles virtual
law library

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:chanrobles virtual law library
This is a petition for review of the orders issued by the
Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter
of the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration and
the motion for appointment of a special
administrator.chanroblesvirtualawlibrary chanrobles
virtual law library
In the petition for probate filed with the respondent court,
the petitioner attached the alleged last will and testament
of the late Dorotea Perez. Written in the CebuanoVisayan dialect, the will consists of two pages. The first
page contains the entire testamentary dispositions and is
signed at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed
at the end of the attestation clause by the three (3)
attesting witnesses and at the left hand margin by the
testatrix.chanroblesvirtualawlibrary chanrobles
virtual
law library
Since no opposition was filed after the petitioner's
compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified
on
its
genuineness
and
due
execution.chanroblesvirtualawlibrarychanrobles virtual
law library

35

The trial court, thru then Presiding Judge Ramon C.

Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with
their corresponding addresses so that they could be
properly notified and could intervene in the summary
settlement
of
the
estate.chanroblesvirtualawlibrarychanrobles virtual law
library
Instead of complying with the order of the trial court, the
petitioner filed a manifestation and/or motion,ex
parte praying for a thirty-day period within which to
deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of
intestate heirs with their addresses be held in
abeyance.chanroblesvirtualawlibrarychanrobles virtual
law library
The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the
motion together with the previous manifestation and/or
motion could not be acted upon by the Honorable Ramon
C. Pamatian due to his transfer to his new station at
Pasig, Rizal. The said motions or incidents were still
pending resolution when respondent Judge Avelino S.
Rosal assumed the position of presiding judge of the
respondent court.chanroblesvirtualawlibrarychanrobles
virtual law library
Meanwhile, the petitioner filed a motion for the
appointment
of
special
administrator.chanroblesvirtualawlibrarychanrobles
virtual law library

Subsequently, the new Judge denied the motion for

reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was
likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names
of'
the
intestate
heirs
and
their
addresses.chanroblesvirtualawlibrary chanrobles virtual
law library
The petitioner decided to file the present
petition.chanroblesvirtualawlibrarychanrobles virtual law
library
For the validity of a formal notarial will, does Article 805
of the Civil Code require that the testatrix and all the
three instrumental and attesting witnesses sign at the
end of the will and in the presence of the testatrix and of
one another?chanrobles virtual law library
Article 805 of the Civil Code provides:chanrobles virtual
law library
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.chanroblesvirtualawlibrarychanrobles virtual law
library
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.chanroblesvirtualawlibrarychanrobles

virtual law library
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one
another.chanroblesvirtualawlibrarychanrobles virtual law
library
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall
be interpreted to them.
The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of the
testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is
found, at the left hand margin of that
page.chanroblesvirtualawlibrarychanrobles virtual law
library
On the other hand, the petitioner maintains that Article
805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature

36

intended to place so heavy an import on the space or

particular location where the signatures are to be found as
long as this space or particular location wherein the
signatures are found is consistent with good faith and the
honest
frailties
of
human
nature.chanroblesvirtualawlibrary chanrobles virtual law
library
We
find
the
petition
meritorious.chanroblesvirtualawlibrarychanrobles virtual
law library
Undoubtedly, under Article 805 of the Civil Code, the
will must be subscribed or signed at its end by the
testator himself or by the testator's name written by
another person in his presence, and by his express
direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of
one another.chanroblesvirtualawlibrarychanrobles virtual
law library
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to
see and take note mentally that those things are, done
which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of
Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d
911).chanroblesvirtualawlibrarychanrobles virtual law
library
Insofar as the requirement of subscription is concerned, it
is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose

of
Identification.chanroblesvirtualawlibrarychanrobles
virtual law library
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation
clause.chanroblesvirtualawlibrarychanrobles virtual law
library
While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of
the will is not assailed. (Gonzales v. Gonzales, 90 Phil.
444, 449).chanroblesvirtualawlibrarychanrobles virtual
law library
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of
giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the
testator. This objective is in accord with the modern
tendency in respect to the formalities in the execution of
a will" (Report of the Code commission, p.
103).chanroblesvirtualawlibrarychanrobles virtual law
library
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the
will.chanroblesvirtualawlibrarychanrobles virtual law
library

The objects of attestation and of subscription were fully

met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary
dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be
the same will executed by the testatrix. There was no
question of fraud or substitution behind the questioned
order.chanroblesvirtualawlibrary chanrobles virtual law
library
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and
actually composed of only two pages duly signed by the
testatrix and her instrumental witnesses. As earlier stated,
the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses
signed at the left margin. The other page which is marked
as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that
"This Last Will and Testament consists of two pages
including
this
page".chanroblesvirtualawlibrarychanrobles virtual law
library
In Singson v. Florentino, et al. (92 Phil. 161, 164), this
Court made the following observations with respect to
the purpose of the requirement that the attestation clause
must state the number of pages used:chanrobles virtual
law library
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires

37

that the attestation clause shall state the number of pages

or sheets upon which the win is written, which
requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to
be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets
or pages composing the will and that if this is missing or
is omitted, it will have the effect of invalidating the will
if the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the will
itself. But here the situation is different. While the
attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last
part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our
opinion takes this case out of the rigid rule of
construction and places it within the realm of similar
cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being
defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the
following ruling which applies a similar liberal
approach:chanrobles virtual law library
... Impossibility of substitution of this page is assured not
only (sic) the fact that the testatrix and two other
witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by
testatrix and all three witnesses. The law should not be so

strictly and literally interpreted as to penalize the testatrix

on account of the inadvertence of a single witness over
whose conduct she had no control where the purpose of
the law to guarantee the Identity of the testament and its
component pages is sufficiently attained, no intentional
or deliberate deviation existed, and the evidence on
record attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will by
muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted.
The orders of the respondent court which denied the
probate of tile will, the motion for reconsideration of the
denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court
is ordered to allow the probate of the wig and to conduct
further proceedings in accordance with this decision. No
pronouncement
on
costs.chanroblesvirtualawlibrary chanrobles virtual law
library
SO ORDERED.
EN BANC
G.R. No. L-42258 January 15, 1936
In re Will of the deceased Leoncia Tolentino.
VICTORIO
PAYAD, Petitioner-Appellant,
vs. AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario and Leonardo Abola for
petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.

GODDARD, J.: chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual
law library
The appeal of the oppositor-appellant is based upon the
alleged failure of the trial court in not finding that the will
in question was executed after the death of Leoncia
Tolentino, or that she was mentally and physically
incapable of executing said will one day before her death.
After a careful examination of the evidence on these
points we find no reason for setting aside the conclusion
of the trial court as set forth above. The assignments of
the
oppositor-appellant
are
therefore
overruled.chanroblesvirtualawlibrary chanrobles virtual
law library
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.chanroblesvirtualawlibrary chanrobles virtual law
library

38

The last paragraph of the questioned will reads in part as

follows:
En prueba de todo lo cual, firmo el presente testamento
con mi marcha digital, poque no puedo estampar mi
firma a causa de mi debilidad, rogando al abogado M.
Almario que poga mi nombre en el sitio donde he de
estampar mi marcha digital . . ..
The evidence of record established the fact that Leoncia
Tolentino, assisted by Attorney Almario, placed her
thumb mark on each and every age of time questioned
will and the said attorney merely wrote her name to
indicate the place where she placed said thumb mark. In
other words Attorney Almario did not sign for the
testatrix. She signed for placing her thumb 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.chanroblesvirtualawlibrary chanrobles virtual law
library
The appealed order of the trial court is reversed and the
questioned will of Leoncia Tolentino, deceased, is hereby
admitted to probate with the costs of this appeal against
the oppositor-appellant.
Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
FIRST

DIVISION

[G.R.

No.

26135.

March

3,

1927.]

In re will of Eustaquio Hagoriles. PETRONILO

GUMBAN, Petitioner-Appellee,
v.
INOCENCIA
GORECHO
ET
AL.,
opponents-appellants.
Powell

&

Hill

4. ID.; ID.; ID.; ID. 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.
(Sao v. Quintana, supra.)

for Appellants.

Padilla, Treas & Magalona and Francisco, Lualhati

&
Lopez
for Appellee.
SYLLABUS
1. WILLS; ALLOWANCE OR DISALLOWANCE;
SECTIONS 618 AND 634 OF THE CODE OF CIVIL.
PROCEDURE CONSTRUED. The right to dispose of
property by will is governed entirely by statute. The law
is here found in section 618 of the Code of Civil
Procedure, as amended by Act No. 2646, and in section
634 of the same Code, as unamended. The law not alone
carefully makes use of the imperative, but cautiously
goes further and makes use of the negative, to enforce
legislative
intention.
2. ID.; ID.; ID.; ATTESTATION. The Philippine
authorities relating to the attestation clause to wills
reviewed. The cases of Sao v. Quintana ([1925], 48
Phil., 506), and Nayve v. Mojal and Aguilar ([1924], 47
Phil., 152), particularly compared. The decision in In re
Will of Quintana, supra, adopted and reaffirmed. The
decision in Nayve v. Mojal and Aguilar, supra, modified.
3. ID.; ID.; ID.; ID. The portion of section 618 of the
Code of Civil Procedure, as amended, which provides
that "The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or
caused same 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"
applied
and
enforced.

DECISION

MALCOLM, J.:

This is an appeal by the widow, Inocencia Gorecho, and

eighteen other opponents, from an order of the Court of
First Instance of Iloilo probating the document presented
by Petronilo Gumban as the last will and testament of the
deceased Eustaquio Hagoriles. Among the errors assigned
is included the finding of the trial court that the alleged
will was prepared in conformity with the law,
notwithstanding it did not contain an attestation clause
stating that the testator and the witnesses signed all the
pages
of
the
will.
In support of their argument on the assignment of error
above mentioned, appellants rely on a series of cases of
this court beginning with in the Matter of the Estate of
Saguinsin ([1920], 41 Phil., 875), continuing with in In re
Will of Andrada ([1921], 42 Phil., 180), Uy Coque v.
Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with in Sao
v. Quintana ([1925], 48 Phil., 50G). Appellee counters
with the citation of a series of cases beginning with
Abangan v. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba v. Roque ([1922], 43 Phil., 378), and
Fernandez v. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve v. 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 Sao v. Quintana,
supra, and Nayve v. Mojal and Aguilar, supra.

39

In the case of Sao v. 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 v. Sioca, supra, was cited, but the case of
Nayve v. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve v. Mojal and Aguilar,
supra, wherein it was held that the attestation clause must
state the fact that the testator and the witnesses
reciprocally saw the signing of the will, for such an act
cannot be proved by the mere exhibition of the will, if it
is not stated therein. It was also held that the fact that the
testator and the witnesses signed each and every page of
the will can be proved also by the mere examination of
the signatures appearing on the document itself, and the
omission to state such evident fact does not invalidate the
will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine.
Yet here, unless aided by casuistry of the extreme type, it
would be impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If we rely
on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place,
the Mojal decision was concurred in by only four
members of the court, less than a majority, with two
strong dissenting opinions; the Quintana 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 618 of the Code
of Civil procedure, as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It is in part

provided in section 618, as amended, that "No will . . .

shall be valid . . . unless . . . ." It is further provided in the
same section that "The attestation shall state the number
of sheets or pages used, upon which the will 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 cases:
1. If not executed and attested as in this Act provided."
The law not alone carefully makes use of the imperative,
but cautiously goes further and makes use of the
negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.

ELEUTERIO CANEDA, Petitioner, vs. COURT OF

APPEALS, HON. GREGORIO S. NARVASA, and/or
the Presiding Judge of the Fifth Branch and/or Court
of First Instance of Manila, PROVINCIAL SHERIFF
OF CEBU, PROVINCIAL SHERIFF OF BOHOL,
PHILIPPINE-AMERICAN GENERAL INSURANCE
CO., INC., CELERINO DELGADO and PEDRO
LABRA, Respondents.

We adopt and reaffirm the decision in the case of Sao v.

Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve v. Mojal and Aguilar,
supra.

LABRADOR, J.:

It may not be said here that our ruling is predicated on

technicality or injustice. The will in question was
formulated in a medley of three languages, Visayan,
English, and Spanish. Suspicious circumstances
surrounded the making of the will by the bedridden old
man, who is alleged to have signed it. However, no
express pronouncements on the two important questions
relating to the language of the will and the testamentary
capacity
of
the
deceased
are
required.
The order appealed from will be reversed, and the
document Exhibit A disallowed as a will, without special
pronouncement as to costs in either instance. So ordered.
Avancea, C.J., Johnson, Street, Ostrand, and VillaReal, JJ., concur.
EN BANC
G.R. No. L-18076 August 31, 1962

V.
L.
Lecaspi
for
petitioner.
Emilio Abello and Manuel Y. Macias for respondent
Philippine-American General Insurance Co., Inc.
Castillo, Wabe and Associates for respondent Celerino
Delgado.

This is an appeal by certiorari filed by the petitioner

against an order of the respondent Court dismissing
petition filed by the herein petitioner in CA-G.R. No
28667-R, Eleuterio Caneda vs. Hon. Gregorio S. Narvasa
et al., on the ground of lack of merits. In the petition
Caneda alleged as a first cause of action that in Civil
Case No. 25376 of the Court of First Instance of Manila,
filed by Philamgen against him (Eleuterio Caneda) and
Celerino Delgado, judgment was rendered sentencing the
defendants to pay to plaintiff P2,986.50, notwithstanding
the fact that no summons was served upon petitioner
Eleuterio Caneda, but that a certain lawyer representing
him self to be petitioner's attorney signed the summons
for his (defendant); as a second cause of action, that in
Civil Case No. 26428, also of the Court of First Instance
of Manila Philamgen as plaintiff and the herein petitioner
Eleutrio Caneda, Celerino Delgado and Pedro Labra as
defendants, the latter were sentenced to pay the sum of
P4,597.50 in spite of the fact that Eleuterio Caneda was
again not served summons, said summons having been

40

received in petitioner's behalf by his co-defendant

Celerino Delgado; and as third cause of action, that in
Civil Case No. 26429, also of the Court of First Instance
of Manila, entitled Philamgen vs. Eleuterio Caneda and
Celerino Delgado, judgment was rendered against said
defendants including petitioner, sentencing them to pay
P3,000.00 notwithstanding the fact that no summons was
served upon the petitioner herein, the summons having
been received for him by his co-defendant Celerino
Delgado. It is further alleged as a cause for complaint
that in the first suit, Civil Case No. 25376 of the Court of
First Instance of Manila, one Ross V. Pangilinan, with
office and/or residence at Enad Building, Juan Luna St.,
Cebu City, represented himself as counsel for petitioner
in violation of the Rules, petitioner herein not having a
residence or place of business at Enad Building, Juan
Luna St., Cebu City; that in the second and third actions,
hearing proceeded without summons having been served
upon petitioner herein; that in none of the above actions
has the petitioner ever engaged the services of Celerino
Delgado, or authorized him to receive summons for him,
or to appear for him as counsel; that the petitioner has
been deprived of his day in court, respondent Philamgen
having without his knowledge and with malice and bad
faith filed and/or proceeded with the proceedings and/or
delayed application for issuance of writ of execution of
the judgment rendered, etc.; that respondent Philamgen in
the civil cases above mentioned pretended good faith in
accepting forged signatures of the herein petitioner as
genuine, etc.; and that the petitioner has no other plain,
speedy and adequate remedy in the ordinary course of
law, the decisions in said civil cases having become final
by lapse of time and the same are pending execution. The
prayer asked for the issuance of a writ of preliminary
injunction restraining the respondent judge, the sheriffs
of Cebu and Bohol, and their agents or representatives,
from executing the judgments rendered in said civil

cases; and after trial to declare the decisions or the

judgments in the above entitled cases null and void, as
entered without jurisdiction, and thereafter declare the
preliminary
injunction
issued
as
permanent.chanroblesvirtualawlibrarychanrobles virtual
law library
The resolution of the Court of Appeals dismissing the
petition reads thus:
Acting upon the verified petition filed by counsel for
petitioner in case CA-G.R. No. 28667-R, Eleuterio
Caneda vs. Hon. Gregorio S. Narvasa, et al., praying, on
the grounds there stated, that upon petitioner's filing of a
bond fixed by the Court, a writ of preliminary injunction
be issued enjoining the respondents, Hon. Gregorio S.
Narvasa or any presiding judge of the Fifth Branch of the
Court of First Instance of Manila, the Provincial Sheriff
of Cebu and the Provincial Sheriff Bohol or any of their
duly authorized representatives from enforcing the
decision and writs of execution issued in Civil Cases No.
26376, Philippine-American General Insurance Co. Inc.
vs. Celerino Delgado, et al., No. 26428, PhilippineAmeric General Insurance Co., Inc. vs. Celerino
Delgado, et al., and 26429, Philippine-American General
Insurance Co., Inc. vs. Celerino Delgado, et al., of the
Court of First Instance of Manila and after hearing, the
decisions rendered by the respondent Judge in the aboveentitled civil cases insofar as it affects the petitioner be
annulled and be declared null and void and the aforesaid
cases against him be dismissed; and considering
allegation in the petition itself that the decisions in the
afore-entitled civil cases have already become final and
hence no longer be appealed, for which reason the
remedy sought herein is not in aid of the Court's appellate
jurisdiction; and considering further that the question of
whether or not to respondent court acquired jurisdiction

over the person of the petitioner in the aforementioned

civil cases is one of fact requiring presentation of
evidence, which can only be done in to appropriate civil
action; the Court RESOLVED to DENY the petition for
lack of merits, and consequently to DISMISS the case, as
the same hereby is DISMISSED without pronouncement
as to costs.
We find merit in the petition. Section 30 of the Judiciary
Act of 1948 defines the pertinent jurisdiction of the Court
of Appeals thus:
Sec. 30. Original jurisdiction of the Court of Appeals. The Court of Appeals shall have original jurisdiction to
issue
writs
of
mandamus,
prohibition,
injunction, certiorari, habeas corpus, and all other
auxiliary writs and process in aid of its appellate
jurisdiction.chanroblesvirtualawlibrarychanrobles virtual
law library
The authority of the Court of Appeals to issue writs
of mandamus,
prohibition,
injunction,certiorari and habeas corpus in aid of its
appellate jurisdiction has held to be based on the
existence of a right to appeal to it from the judgment on
the merits. (Tuason & Co., etc. vs. Court of Appeals, G.R.
No. L-18128, December 26, 1961; Republic vs. Tuason,
et al., G.R. No. L-18672, December 26, 1961; Tuason &
Co., Inc., etc. vs. Sanvictores, G.R. No. L-16836, January
30, 1962.) For the Court of Appeals to have jurisdiction
in said special civil cases it is not necessary that a party
has actually appealed or will take an appeal against
decisions or resolutions of the Court of First Instance; it
is enough if it appears from the plaintiff's petition that the
petitioner has a right to appeal according to law from the
order or decision of the Court of First Instance to the
Court of Appeals. (Breslin, et al. v. Luzon Stevedoring

41

Co., et al., CA-G.R. No. 3121-R, Sept. 29, 1949; Valero

vs. Ysip, et al., CA-G.R. No. 4896-R, June 30, 1950).
There is no doubt in the case at bar that had petitioner
been notified of the proceeding taken against him in the
manner provided by the Rules, he could have brought
timely appeal against the judgments subject of his
petition for annulment, it appearing that the amounts
involved in the actions fall within the appellate
jurisdiction of the Court of Appeals. In that case of Salva
vs. Palacio, et al., G.R. No. L-4247, Jan. 30, 1952, this
Court in denying a petition filed before it, held:
This petition should have been filed in the Court of
Appeals because it is a special civil remedy in aid of the
appellate jurisdiction of the Court of Appeals. Had the
record on appeal been allowed it would have come under
the appellate jurisdiction of the Court of Appeals.
The Court of Appeals has what may be known as a
supervisory power over the courts of first instance,
because ordinarily decisions or orders of these lower
courts are appealable thereto. The case at bar is an
example where the supervisory power should be
exercised by the Court of Appeals to correct apparent
errors affecting the validity of the proceedings before the
lower court. It is not, as stated in the resolution of the
Court of Appeals appealed from, the fact that evidence
would be taken that determines whether or not the Court
of Appeals has jurisdiction to entertain the petition for
injunction. Were we to follow the ruling enunciated in the
order appealed from, petitioner here would never have
any remedy at all. Besides, the certified copies of the
summonses and the service thereof to petitioner herein in
the three cases subject of his petition for annulment are
enough to prove the validity of his assertions that there
was no service of summons upon him or that it had been

irregular. Copies of the summonses have been furnished

to this Court in the record and we are satisfied that the
claim of petitioner stated in his petition, that he has not
been summoned in accordance with the rules, is wellfounded.chanroblesvirtualawlibrarychanrobles
virtual
law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

FOR THE FOREGOING CONSIDERATIONS, the

petition is hereby granted, the decisions or judgments
rendered against the petitioner are hereby declared null
and void in so far as they affect the petitioner, and the
preliminary injunction issued upon the filing of the
petition is hereby made permanent. With costs against
respondents Philippine-American General Insurance Co.,
Inc., Celerino Delgado and Pedro Labra. So
ordered.chanroblesvirtualawlibrarychanrobles virtual law
library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

Padilla, Bautista Angelo, Concepcion, Barrera, Paredes,

Dizon,
Regala
and
Makalintal,
JJ., concur.
Bengzon, C.J. and Reyes, J.B.L., J., took no part.
EN BANC
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.: chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles
virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual
law library

42

Wherefore, the appealed decision is reversed and the

probate of the will in question denied. So ordered with
costs
against
the
petitioner
and
appellee.chanroblesvirtualawlibrary chanrobles
virtual
law library

probate.chanroblesvirtualawlibrary chanrobles virtual law

library

Separate Opinions chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law
library

BAUTISTA ANGELO, J., dissenting:chanrobles virtual

law library

The following observation made by this court in the

Abangan case is very fitting:

DECISION

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.chanroblesvirtualawlibrary chanrobles virtual law
library

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)

Pablo, Bengzon, Montemayor, Jugo and Labrador,

JJ., concur.

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,

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)chanrobles virtual law library

Feria, J., concurs.

THIRD DIVISION
[G.R. NO. 122880 : April 12, 2006]
FELIX
AZUELA, Petitioner, v. COURT
OF
APPEALS, GERALDA AIDA CASTILLO substituted
by ERNESTO G. CASTILLO, Respondents.

TINGA, J.:
The core of this petition is a highly defective notarial
will, purportedly executed by Eugenia E. Igsolo
(decedent), who died on 16 December 1982 at the age of
80. In refusing to give legal recognition to the due
execution of this document, the Court is provided the
opportunity to assert a few important doctrinal rules in
the execution of notarial wills, all self-evident in view of
Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed
by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not
contain an acknowledgment, but a mere jurat, is
fatally defective. Any one of these defects is sufficient
to deny probate. A notarial will with all three defects
is just aching for judicial rejection.

I am therefore of the opinion that the will in question

should
be
admitted
to

43

There is a distinct and consequential reason the Civil

Code provides a comprehensive catalog of imperatives
for the proper execution of a notarial will. Full and
faithful compliance with all the detailed requisites under
Article 805 of the Code leave little room for doubt as to
the validity in the due execution of the notarial will.
Article 806 likewise imposes another safeguard to the
validity of notarial wills - that they be acknowledged
before a notary public by the testator and the witnesses. A
notarial will executed with indifference to these two
codal provisions opens itself to nagging questions as to
its legitimacy.
The case stems from a petition for probate filed on 10
April 1984 with the Regional Trial Court (RTC) of
Manila. The petition filed by petitioner Felix Azuela
sought to admit to probate the notarial will of Eugenia E.
Igsolo, which was notarized on 10 June 1981. Petitioner
is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San
Diego St., Sampaloc, Manila, pitongput siyam (79) na
gulang, nasa hustong pagi-isip, pag-unawa at memoria ay
nag-hahayag na ito na ang aking huling habilin at
testamento, at binabali wala ko lahat ang naunang
ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte, La Loma sang-ayong sa kaugalian at patakaran ng

simbahang katoliko at ang taga-pag-ingat (Executor) ng

habiling ito ay magtatayo ng bantayog upang silbing alaala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat
ng karapatan sa aking pamangkin na si Felix Azuela, na
siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na
nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob
kong buong buo ang lahat ng karapatan sa bahay at lupa
na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc,
Manila kay Felix Azuela at ang pagkakaloob kong ito ay
walang pasubali't at kondiciones;
Pangatlo - Na ninunumbrahan ko si VART PAGUE na
siyang nagpapatupad ng huling habiling ito at kagustuhan
ko rin na hindi na kailanman siyang mag-lagak ng
piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa
Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA
(Tagapagmana)

E.

IGSOLO

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang nabanggit at sa

kaliwang panig ng lahat at bawa't dahon, sa harap ng

lahat at bawa't sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawa't isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa't dahon
ng kasulatan ito.
EUGENIA
E.
address:
500
San
Sampaloc, Manila Res. Cert.
Issued at Manila on March 10, 1981.

IGSOLO
Diego
St.
No. A-7717-37

QUIRINO
address:
1228-Int.
3,
Pandacan, Manila Res. Cert. No.
Issued at Manila on Jan. 21, 1981

AGRAVA
Kahilum
A-458365

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
address:
City
Court
City of Manila Res. Cert.
Issued at Manila on March 2, 1981.

ESTRERA
Compound,
No. A574829

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10,

1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc.
Page

No. 1232 ;
NOTARIO
No. 86 ;
Until
Dec.

PUBLIKO
31,
1981

44

Book
No. 43 ;
PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81

acknowledged. These twin arguments are among the

central matters to this petition.

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.

After due trial, the RTC admitted the will to probate, in

an Order dated 10 August 1992. 6 The RTC favorably took
into account the testimony of the three (3) witnesses to
the will, Quirino Agrava, Lamberto Leano, and Juanito
Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of
a will x x x with the end in view of giving the testator
more freedom in expressing his last wishes;"7 and from
this perspective, rebutted oppositor's arguments that the
will was not properly executed and attested to in
accordance with law.

The probate petition adverted to only two (2) heirs,

legatees and devisees of the decedent, namely: petitioner
himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo
(Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so
it could be utilized as a defense in several court cases
filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all
centering on petitioner's right to occupy the properties of
the decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was actually
survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was
the widow of Bonifacio Igsolo, who died in 1965, 4 and
the mother of a legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was
not executed and attested to in accordance with law. She
pointed out that decedent's signature did not appear on
the second page of the will, and the will was not properly

After a careful examination of the will and consideration

of the testimonies of the subscribing and attesting
witnesses, and having in mind the modern tendency in
respect to the formalities in the execution of a will, i.e.,
the liberalization of the interpretation of the law on the
formal requirements of a will with the end in view of
giving the testator more freedom in expressing his last
wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has
noted that at the end of the will after the signature of the
testatrix, the following statement is made under the subtitle, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia N.
Igsolo, tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang nabanggit
at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng

lahat at bawa't sa amin, at kami namang mga saksi ay

lumagda sa harap ng nasabing tagapagmana at sa harap
ng lahat at bawa't isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawa't dahon
ng kasulatan ito."
The aforequoted declaration comprises the attestation
clause and the acknowledgement and is considered by
this Court as a substantial compliance with the
requirements of the law.
On the oppositor's contention that the attestation clause
was not signed by the subscribing witnesses at the bottom
thereof, this Court is of the view that the signing by the
subscribing witnesses on the left margin of the second
page of the will containing the attestation clause and
acknowledgment, instead of at the bottom thereof,
substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositor's argument that the will was
not numbered correlatively in letters placed on upper part
of each page and that the attestation did not state the
number of pages thereof, it is worthy to note that the will
is composed of only two pages. The first page contains
the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation
clause and acknowledgement. Such being so, the defects
are not of a serious nature as to invalidate the will. For
the same reason, the failure of the testatrix to affix her
signature on the left margin of the second page, which
contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor's assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing

45

enough to establish the genuineness of the signature of

the testatrix and the due execution of the will. 8

be numbered correlatively in letters placed on the upper

part of each page.

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

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.

Hence, the present petition.

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

witnesses, it shall be interpreted to them.

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

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. 12There was
an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number
of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing
the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the
Court noted that among the defects of the will in question

was the failure of the attestation clause to state the

number of pages contained in the will. 15 In ruling that the
will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to
this day: "The purpose of requiring the number of sheets
to be stated in the attestation clause is obvious; the
document might easily be so prepared that the
removal of a sheet would completely change the
testamentary dispositions of the will and in the
absence of a statement of the total number of sheets
such removal might be effected by taking out the sheet
and changing the numbers at the top of the following
sheets or pages. If, on the other hand, the total number of
sheets is stated in the attestation clause the falsification of
the document will involve the inserting of new pages and
the forging of the signatures of the testator and witnesses
in the margin, a matter attended with much greater
difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security
against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the
number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the

46

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 v. Emilia Florentino, et al., 92
Phil. 161 and Apolonio [Taboada] v. 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 v. 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:

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 165165, supra) (Underscoring supplied)
In "Apolonio Tabaoda v. Hon. Avelino Rosal, et
al." supra, the notarial acknowledgement in the Will
states the number of pages used in the:
"x x x

"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of pages
or sheets upon which the will is written, which
requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation
or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to
be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque v. Navas L. Sioca, 43 Phil., 405; Gumban v.
Gorcho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481;
Echevarria v. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation

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"

(Underscoring supplied).

(pages

200-201,

supra)

However, in the appeal at bench, the number of pages

used in the will is not stated in any part of the Will. The
will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be
stated.21
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of
wills was Section
618 of the Code of Civil Procedure. 22 Reliance on these
cases remains apropos, considering that the requirement
that the attestation state the number of pages of the will is
extant from Section 618.23However, 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

47

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.

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.

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 aliundewould result in the invalidation of the
attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state
that the testator signed every page can be liberally
construed, since that fact can be checked by a visual
examination; while a failure by the attestation clause to
state that the witnesses signed in one another's presence
should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance. 32

At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations
of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced
that these remained effective safeguards against the
forgery or intercalation of notarial wills. 34 Compliance
with these requirements, however picayune in
impression, affords the public a high degree of comfort
that the testator himself or herself had decided to convey
property post mortem in the manner established in the
will.35 The transcendent legislative intent, even as
expressed in the cited comments of the Code
Commission, is for the fruition of the testator's
incontestable desires, and not for the indulgent
admission of wills to probate.

The 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

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.

48

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.

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

Cagro v. Cagro36 is material on this point. As in this case,

"the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although
the page containing the same is signed by the witnesses
on the left-hand margin."37 While three (3)
Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6),
speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the
will fatally defective.

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.

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

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 Lungsod ng
Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a
deed in going before some competent officer or court and
declaring it to be his act or deed. 41 It involves an extra
step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to
the notary that the same is his/her own free act and deed.

49

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.42Ordinarily, 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.

WHEREFORE, the petition is DENIED. Costs against

petitioner.

There are two other requirements under Article 805

which were not fully satisfied by the will in question. We
need not discuss them at length, as they are no longer
material to the

G.R. No. 189984 : November 12, 2012

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.

SO ORDERED.
SECOND DIVISION

IN THE MATTER OF THE PETITION FOR THE

PROBATE
OF THE
LAST WILL AND
TESTAMENT OF ENRIQUE S. LOPEZ RICHARD
B. LOPEZ, Petitioner, v. DIANA JEANNE LOPEZ,
MARYBETH DE LEON and VICTORIA L.
TUAZON, Respondents.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorari assails the March
30, 2009 Decision1rll and October 22, 2009
Resolution2rll of the Court of Appeals (CA) in CAG.R. CV No. 87064 which affirmed the August 26, 2005
Decision3rll of the Regional Trial Court of Manila,
Branch 42 (RTC), in SP. Proc. No. 99-95225 disallowing
the probate of the Last Will and Testament of Enrique S.
Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died
leaving his wife, Wendy B. Lopez, and their four
legitimate children, namely, petitioner Richard B. Lopez
(Richard) and the respondents Diana Jeanne Lopez
(Diana), Marybeth de Leon (Marybeth) and Victoria L.

50

Tuazon (Victoria) as compulsory heirs. Before Enriques

death, he executed a Last Will and Testament 4rll on
August 10, 1996 and constituted Richard as his executor
and administrator.
On September 27, 1999, Richard filed a petition for the
probate of his father's Last Will and Testament before the
RTC of Manila with prayer for the issuance of letters
testamentary in his favor. Marybeth opposed the petition
contending that the purported last will and testament was
not executed and attested as required by law, and that it
was procured by undue and improper pressure and
influence on the part of Richard. The said opposition was
also adopted by Victoria.
After submitting proofs of compliance with jurisdictional
requirements, Richard presented the attesting witnesses,
namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria
Lourdes Manalo (Manalo); and the notary public who
notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco).
The instrumental witnesses testified that after the late
Enrique read and signed the will on each and every page,
they also read and signed the same in the latter's presence
and of one another. Photographs of the incident were
taken and presented during trial. Manalo further testified
that she was the one who prepared the drafts and
revisions from Enrique before the final copy of the will
was made.
Likewise, Atty. Nolasco claimed that Enrique had been
his client for more than 20 years. Prior to August 10,
1996, the latter consulted him in the preparation of the
subject will and furnished him the list of his properties
for distribution among his children. He prepared the will
in accordance with Enrique's instruction and that before
the latter and the attesting witnesses signed it in the
presence of one another, he translated the will which was

written in English to Filipino and added that Enrique was

in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone
witness, Gregorio B. Paraon (Paraon), Officer-in-Charge
of the Notarial Section, Office of the Clerk of Court,
RTC, Manila. His testimony centered mainly on their
findings that Atty. Nolasco was not a notary public for
the City of Manila in 1996, which on cross examination
was clarified after Paraon discovered that Atty. Nolasco
was commissioned as such for the years 1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005, 5rll the RTC
disallowed the probate of the will for failure to comply
with Article 805 of the Civil Code which requires a
statement in the attestation clause of the number of pages
used upon which the will is written. It held that while
Article 809 of the same Code requires mere substantial
compliance of the form laid down in Article 805 thereof,
the rule only applies if the number of pages is reflected
somewhere else in the will with no evidence aliunde or
extrinsic evidence required. While the acknowledgment
portion stated that the will consists of 7 pages including
the page on which the ratification and acknowledgment
are written, the RTC observed that it has 8 pages
including the acknowledgment portion. As such, it
disallowed the will for not having been executed and
attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the
RTC granted in the Order dated October 26, 2005.6rll
Ruling of the Court of Appeals

On March 30, 2009,7rll the CA issued the assailed

decision dismissing the appeal. It held that the RTC
erroneously granted Richard's appeal as the Rules of
Court is explicit that appeals in special proceedings, as in
this case, must be made through a record on appeal.
Nevertheless, even on the merits, the CA found no valid
reason to deviate from the findings of the RTC that the
failure to state the number of pages of the will in the
attestation clause was fatal. It noted that while Article
809 of the Civil Code sanctions mere substantial
compliance with the formal requirements set forth in
Article 805 thereof, there was a total omission of such
fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages
including the page on which the ratification and
acknowledgment are written," the will had actually 8
pages including the acknowledgment portion thus,
necessitating the presentation of evidence aliunde to
explain the discrepancy. Richard's motion for
reconsideration from the decision was likewise denied in
the second assailed Resolution8rll dated October 22,
2009.
Hence, the instant petition assailing the propriety of the
CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills,
particularly, Articles 805 and 809 of the Civil Code
provide:chanroblesvirtuallawlibrary
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

51

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. (underscoring
supplied)
ART. 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of
Article 805.
The law is clear that the attestation must state the number
of pages used upon which the will is written. The purpose
of the law is to safeguard against possible interpolation or
omission of one or some of its pages and prevent any
increase or decrease in the pages.9rll

While Article 809 allows substantial compliance for

defects in the form of the attestation clause, Richard
likewise failed in this respect. The statement in the
Acknowledgment portion of the subject last will and
testament that it "consists of 7 pages including the page
on which the ratification and acknowledgment are
written"10rll cannot
be
deemed
substantial
compliance. The will actually consists of 8 pages
including its acknowledgment which discrepancy cannot
be explained by mere examination of the will itself but
through the presentation of evidence aliund. 11rll On
this score is the comment of Justice J.B.L. Reyes
regarding the application of Article 809, to
wit:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the petition is

DENIED.rllbrr

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.12rll (Emphasis supplied)

BRION, J.:

Hence, the CA properly sustained the disallowance of the

will. Moreover, it correctly ruled that Richard pursued the
wrong mode of appeal as Section 2(a), Rule 41 of the
Rules of Court explicitly provides that in special
proceedings, as in this case, the appeal shall be made by
record on appeal.blrlllbrr

SO ORDERED.
G.R. No. 192916 : October 11, 2010
MANUEL
A.
ECHAVEZ, Petitioner, v. DOZEN
CONSTRUCTION
AND
DEVELOPMENT
CORPORATION and THE REGISTER OF DEEDS
OF CEBU CITY, Respondents.cralaw
RESOLUTION

Vicente Echavez (Vicente) was the absolute owner of

several lots in Cebu City, which includes Lot No. 1956-A
and Lot No. 1959 (subject lots). On September 7, 1985,
Vicente donated the subject lots to petitioner Manuel
Echavez (Manuel) through a Deed of Donation Mortis
Causa.1cra1aw Manuel accepted the donation.
In March 1986, Vicente executed a Contract to Sell over
the same lots in favor of Dozen Construction and
Development Corporation (Dozen Corporation). In
October 1986, they executed two Deeds of Absolute Sale
over the same properties covered by the previous
Contract to Sell.
On November 6, 1986, Vicente died. Emiliano Cabanig,
Vicentes nephew, filed a petition for the settlement of
Vicentes intestate estate. On the other hand, Manuel filed
a petition to approve Vicentes donation mortis causa in
his favor and an action to annul the contracts of sale

52

Vicente executed in favor of Dozen Corporation. These

cases were jointly heard.
The Regional Trial Court (RTC) dismissed Manuels
petition to approve the donation and his action for
annulment of the contracts of sale. 2cra1aw The RTC
found that the execution of a Contract to Sell in favor of
Dozen Corporation, after Vicente had donated the lots to
Manuel, was an equivocal act that revoked the donation.
The Court of Appeals (CA) affirmed the RTCs
decision.3cra1aw The CA held that since the donation in
favor of Manuel was a donation mortis causa, compliance
with the formalities for the validity of wills should have
been observed. The CA found that the deed of donation
did not contain an attestation clause and was therefore
void.
The Petition for Review on Certiorari
Manuel claims that the CA should have applied the rule
on substantial compliance in the construction of a will to
Vicentes donation mortis causa. He insists that the strict
construction of a will was not warranted in the absence of
any indication of bad faith, fraud, or substitution in the
execution of the Deed of Donation Mortis Causa. He
argues that the CA ignored the Acknowledgment portion
of the deed of donation, which contains the "import and
purpose" of the attestation clause required in the
execution
of
wills.
The
Acknowledgment
reads:chanroblesvirtualawlibrary
BEFORE ME, Notary Public, this 7th day of September
1985 at Talisay, Cebu, personally appeared VICENTE S.
Echavez with Res. Cert. No. 16866094 issued on April
10, 1985 at [sic] Talisay, Cebu known to me to be the
same person who executed the foregoing instrument of
Deed of Donartion Mortis Causa before the Notary

Public and in the presence of the foregoing three (3)

witnesses who signed this instrument before and in the
presence of each other and of the Notary Public and all of
them acknowledge to me that the same is their voluntary
act and deed. [Emphasis in the original.]

a deed, declaring before a competent officer or court that

the deed or act is his own. On the other hand, the
attestation of a will refers to the act of the instrumental
witnesses themselves who certify to the execution of the
instrument before them and to the manner of its
execution.8chanroblesvirtuallawlibrary

THE COURTS RULING

The CA correctly declared that a donation mortis causa
must comply with the formalities prescribed by law for
the validity of wills, 4cra1aw "otherwise, the donation is
void and would produce no effect." 5cra1awArticles 805
and 806 of the Civil Code should have been applied.
As the CA correctly found, the purported attestation
clause embodied in the Acknowledgment portion does
not contain the number of pages on which the deed was
written.The exception to this rule in Singson v.
Florentino6cra1aw and
Taboada
v.
Hon.
Rosal,7cra1aw cannot be applied to the present case, as
the facts of this case are not similar with those of Singson
and Taboada. In those cases, the Court found that
although the attestation clause failed to state the number
of pages upon which the will was written, the number of
pages was stated in one portion of the will. This is not the
factual situation in the present case.

Although the witnesses in the present case acknowledged

the execution of the Deed of Donation Mortis Causa
before the notary public, this is not the avowal the law
requires from the instrumental witnesses to the execution
of a decedents will. An attestation must state all the
details the third paragraph of Article 805 requires. In the
absence of the required avowal by the witnesses
themselves, no attestation clause can be deemed
embodied in the Acknowledgement of the Deed of
Donation Mortis Causa.
Finding no reversible error committed by the CA, the
Court hereby DENIES Manuels petition for review on
certiorari.
SO ORDERED.

Even granting that the Acknowledgment embodies what

the attestation clause requires, we are not prepared to
hold that an attestation clause and an acknowledgment
can be merged in one statement.

43 Phil. 405

That the requirements of attestation and acknowledgment

are embodied in two separate provisions of the Civil
Code (Articles 805 and 806, respectively) indicates that
the law contemplates two distinct acts that serve different
purposes. An acknowledgment is made by one executing

IN THE MATTER OF THE ESTATE OF GERONIMA

UY COQUE,DECEASED. ANDREA UY COQUE ET
AL., PETITIONERS ANDAPPELLEES, VS. JUAN
NAVAS L. SIOCA, SPECIALADMINISTRATOR OF

[ G. R. No. 17430, May 31, 1922 ]

53

THE
ESTATE
OF
GERONIMA
COQUE,DECEASED,
OPPONENT
APPELLANT.D E C I S I O N

UY
AND

OSTRAND, J.:
This is an appeal from an order of the Court of First
Instance of Samar, admittinga will to probate.The validity
of the will is attacked on the ground that the testatrix was
mentallyincapacitated at the time of its execution and on
the further ground that it wasnot executed in the form
prescribed by section 618 of the Code of Civil
Procedureas amended by Act No. 2645.The transcript of
the testimony taken in the probate proceedings not
appearingin the record, we cannot review the findings of
the court below as to the sanity of the testatrix. This
leaves for our consideration only the question as to
whetherthe omission of certain formalities in the
execution of the will are fatal to itsvalidity.Section 618 of
the Code of Civil Procedure as amended by Act No. 2645
reads:"No will, except as provided in the preceding
section, shall be valid topass any estate, real or personal,
nor charge or affect the same,unless it be written in the
language or dialect known by the testatorand signed by
him, or by the testator's name written by some
otherperson in his presence, and by his express direction,
and attested andsubscribed by three or more credible
witnesses in the presence of thetestator and of each other.
The testator or the person requested byhim to write his
name and the instrumental witnesses of the will, shallalso
sign, as aforesaid, each and every page thereof, on the
leftmargin, and said pages shall be numbered
correlatively in lettersplaced on the upper part of each
sheet. The attestation shall state thenumber of sheets or
pages used, upon which the will is written, andthe fact
that the testator signed the will and every page thereof,
orcaused some other person to write his name, under his

expressdirection, in the presence of three witnesses, and

the latter witnessed and signed the will and all pages
thereof in the presence of thetestator and of each
other."The formal defects of the will in question occur in
its attestation clause which, intranslation, read as
follows:"We, the undersigned witnesses of this will, state
that it has beenshown to us by the testatrix as her last will
and testament. And asshe cannot sign her name, she
asked that Mr. Filomeno Piczon signher name in the
presence of each of us, and each of us, thewitnesses, also
signed in the presence of the testatrix."It will be noted
that the attestation clause does not state the number of
pagescontained in the will nor does it state that the
witnesses signed in the presenceof each other. Neither do
these facts appear in any other part of the will.Statutes
prescribing the formalities to be observed in the
execution of wills arevery strictly construed. As stated in
40 Cyc., at page 1097, "A will must beexecuted in
accordance with the statutory requirements; otherwise it
is entirelyvoid. All these requirements stand as of equal
importance and must be observed,and courts cannot
supply the defective execution of a will. No power or
discretionis vested in them, either to superadd other
conditions or dispense with thoseenumerated in the
statutes."This court has also frequently held that a will
should not be probated unless in itsexecution there has
been a strict compliance with all the requisites prescribed
insection 618 of the Code of Civil Procedure. It is true
that in the case of Abanganvs. Abangan (40 Phil., 476)
the court upheld the validity of a will consisting of only
two pages, the first containing all the testamentary
dispositions and beingsigned by the testator at the bottom
and by both the testator and the witnessesin the margin,
the second page containing only the attestation clause
with thesignatures of the witnesses at the bottom but
without marginal signatures. Thedecision was based on
the ground that it could not have been the intention of

thelegislator to require, as an essential to the validity of

the will, that all thesignatures appear twice on the same
page as such a requirement would beentirely purposeless.
This decision is no doubt sound; that in
statutoryconstruction the evident
intent
of the legislator controls will probably not
bedisputed.But it must not be forgotten that in construing
statutory provisions in regard tothe formal requisites of a
will, we are seeking to ascertain the intent of thelegislator
and not that of the testator; the latter's intention is
frequently defeatedthrough non-observance of the
statute.The purpose of the Legislature in prescribing the
rather strict formalities nowrequired in the execution of a
will are clearly revealed by comparing section 618,supra,
as originally enacted with the amended section quoted
above. The original section reads:"No will, except as
provided in the preceding section, shall be valid topass
any estate, real or personal, nor charge or affect the
same,unless it be in writing and signed by the testator, or
by the testator'sname written by some other person in his
presence, and by hisexpress direction, and attested and
subscribed by three or morecredible witnesses in the
presence of the testator and of each other.The attestation
shall state the fact that the testator signed the will,
orcaused it to be signed by some other person, at his
express direction,in the presence of three witnesses, and
that they attested andsubscribed it in his presence and in
the presence of each other. Butthe absence of such form
of attestation shall not render the willinvalid if it is
proven that the will was in fact signed and attested as
inthis section provided."The amendments or changes
introduced by Act No. 2645 are (a) that the willmust now
be executed in a language or dialect known to the
testator; (b) that the testator and witnesses must sign each

54

page on the left margin; (c) that the pages be numbered

correlatively; (d) that the attestation clause shall state the
number of sheets or pages used in the will and (e) that it
must appear from the attestation clause itself that the
testator and witnesses signed in the form and manner
required by law and that this can no longer be proven by
evidence aliunde. The changes mentioned under (d) and
(e) are the only ones which need be considered in the
present case. The purpose of requiring the number of
sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of
a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement
of the total number of sheets such removal might be
effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on
the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the

signatures of the testator and witnesses in the margin, a

matter attended with much greater difficulty. The purpose
of the new requirement that it must appear in the
attestation clausethat the testator and the witnesses signed
in the presence of each other and thatthe fact cannot be
proved by evidence

importance to the matter. If so, the courts will not be

justified in enervating the amendment by too liberal a
construction. We therefore hold that the two defects noted
in the attestation clause of the alleged will renders it null
and void and that it cannot be admitted to probate. The
order appealed from is reversed with the costs against the
appellee. Soordered.

aliunde
Araullo, C. J., Avancea, Villamor,
is, perhaps, less obvious, but, in view of the well-known
unreliability of oral evidence, it is clear that a statement
in the attestation clause will afford more satisfactory
evidence of the fact to be proven. In any event, the fact
that the old rule in regard to admissibility of oralevidence
to prove that the testator and witnesses signed in the
mannerprescribed by the law evidently had been found
unsatisfactory and wasdeliberately varied by amendment
shows that the Legislature attached

and
Romualdez, JJ.,
concur

55