SECOND DIVISION It is our further will that any

one surviving spouse reserves the

right, ownership, possession and
JARABINI G. DEL ROSARIO, G.R. No. 187056 administration of this property herein
Petitioner, donated and accepted and this
Present: Disposition and Donation shall be
CARPIO, J., Chairperson, operative and effective upon the death
- versus - PERALTA, of the DONORS.[3]
.
ASUNCION G. FERRER, substituted Although denominated as a donation mortis causa,
by her heirs, VICENTE, PILAR, which in law is the equivalent of a will, the deed had no
ANGELITO, FELIXBERTO, JR., attestation clause and was witnessed by only two
all surnamed G. FERRER, and Promulgated: persons. The named donees, however, signified their
MIGUELA FERRER ALTEZA, acceptance of the donation on the face of the document.
Respondents. September 20, 2010
Guadalupe, the donor wife, died in September
x ------------------------------------------------------------------------- 1968. A few months later or on December 19, 1968,
-------------- x Leopoldo, the donor husband, executed a deed of
assignment of his rights and interests in subject property
DECISION to their daughter Asuncion. Leopoldo died in June 1972.

ABAD, J.: In 1998 Jarabini filed a petition for the probate of

This case pertains to a gift, otherwise
denominated as a donation mortis causa, which in reality is
a donation inter vivos made effective upon its execution by
the donors and acceptance thereof by the donees, and
immediately transmitting ownership of the donated
property to the latter, thus precluding a subsequent
assignment thereof by one of the donors.
The Facts and the Case
On August 27, 1968 the spouses Leopoldo and
Guadalupe Gonzales executed a document entitled
Donation Mortis Causa[1] in favor of their two children,
Asuncion and Emiliano, and their granddaughter, Jarabini
(daughter of their predeceased son, Zoilo) covering the
spouses 126-square meter lot and the house on it in
Pandacan, Manila[2] in equal shares. The deed of donation
reads:
It is our will that this
Donation Mortis Causa shall be
irrevocable and shall be respected by
the surviving spouse.
It is our will that Jarabini
Gonzales-del Rosario and Emiliano
Gonzales will continue to occupy the
portions now occupied by them.
It is further our will that this
DONATION MORTIS CAUSA shall not in
any way affect any other distribution
of other properties belonging to any of
us donors whether testate or intestate
and where ever situated.
the August 27, 1968 deed of donation mortis causa before
the Regional Trial Court (RTC) of Manila in Sp. Proc. 98-
90589.[4] Asuncion opposed the petition, invoking his
father Leopoldos assignment of his rights and interests in
the property to her.
After trial, the RTC rendered a decision dated June
20, 2003,[5] finding that the donation was in fact one
made inter vivos, the donors intention being to transfer
title over the property to the donees during the donors
lifetime, given its irrevocability. Consequently, said the
RTC, Leopoldos subsequent assignment of his rights and
interest in the property was void since he had nothing to
assign. The RTC thus directed the registration of the
property in the name of the donees in equal shares.[6]
On Asuncions appeal to the Court of Appeals (CA),
the latter rendered a decision on December 23,
2008,[7] reversing that of the RTC. The CA held that Jarabini
cannot, through her petition for the probate of the deed of
donation mortis causa, collaterally attack Leopoldos deed
of assignment in Asuncions favor. The CA further held that,
since no proceeding exists for the allowance of what
Jarabini claimed was actually a donation inter vivos, the
RTC erred in deciding the case the way it did. Finally, the
CA held that the donation, being one given mortis causa,
did not comply with the requirements of a notarial
will,[8] rendering the same void. Following the CAs denial
of Jarabinis motion for reconsideration,[9] she filed the
present petition with this Court.
Issue Presented
The key issue in this case is whether or not the
spouses Leopoldo and Guadalupes donation to Asuncion,
Emiliano, and Jarabini was a donation mortis causa, as it
was denominated, or in fact a donation inter vivos.
The Courts Ruling

That the document in question in this case was
captioned Donation Mortis Causa is not controlling. This
Court has held that, if a donation by its terms is inter vivos,
this character is not altered by the fact that the donor
styles it mortis causa.[10]
In Austria-Magat v. Court of Appeals,[11] the Court
held that irrevocability is a quality absolutely incompatible
with the idea of conveyances mortis causa, where
revocability is precisely the essence of the act. A
donation mortis causa has the following characteristics:
1. It conveys no title or
ownership to the transferee before the
death of the transferor; or, what
amounts to the same thing, that the
transferor should retain the
ownership (full or naked) and control
of the property while alive;
2. That before his death, the
transfer should be revocable by the
transferor at will, ad nutum; but
revocability may be provided for
indirectly by means of a reserved
power in the donor to dispose of the
properties conveyed; and
3. That the transfer should be
void if the transferor should survive
the transferee.[12] (Underscoring
supplied)
The Court thus said in Austria-Magat that the
express irrevocability of the donation is the distinctive
standard that identifies the document as a donation inter
vivos. Here, the donors plainly said that it is our will that
this Donation Mortis Causa shall be irrevocable and shall
be respected by the surviving spouse. The intent to make
the donation irrevocable becomes even clearer by the
proviso that a surviving donor shall respect the
irrevocability of the donation. Consequently, the donation
was in reality a donation inter vivos.
The donors in this case of course reserved the
right, ownership, possession, and administration of the
property and made the donation operative upon their
death. But this Court has consistently held that such
reservation (reddendum) in the context of an irrevocable
donation simply means that the donors parted with their
naked title, maintaining only beneficial ownership of the
donated property while they lived.[13]
Notably, the three donees signed their acceptance
of the donation, which acceptance the deed
required.[14] This Court has held that an acceptance clause
indicates that the donation is inter vivos, since acceptance
is a requirement only for such kind of
donations. Donations mortis causa, being in the form of a
will, need not be accepted by the donee during the donors
lifetime.[15]
Finally, as Justice J. B. L. Reyes said in Puig v.
Peaflorida,[16] in case of doubt, the conveyance should be
deemed a donation inter vivosrather than mortis causa, in
order to avoid uncertainty as to the ownership of the
property subject of the deed.
Since the donation in this case was one made inter
vivos, it was immediately operative and final. The reason is
that such kind of donation is deemed perfected from the
moment the donor learned of the donees acceptance of the
donation. The acceptance makes the donee the absolute
owner of the property donated.[17]
Given that the donation in this case was
irrevocable or one given inter vivos, Leopoldos subsequent
assignment of his rights and interests in the property
to Asuncion should be regarded as void for, by then, he had
no more rights to assign. He could not give what he no
longer had. Nemo dat quod non habet.[18]
The trial court cannot be faulted for passing upon,
in a petition for probate of what was initially supposed to
be a donation mortis causa, the validity of the document as
a donation inter vivos and the nullity of one of the donors
subsequent assignment of his rights and interests in the
property. The Court has held before that the rule on
probate is not inflexible and absolute.[19] Moreover, in
opposing the petition for probate and in putting the
validity of the deed of assignment squarely in
issue, Asuncion or those who substituted her may not now
claim that the trial court improperly allowed a collateral
attack on such assignment.
WHEREFORE, the Court GRANTS the
petition, SETS ASIDE the assailed December 23, 2008
Decision and March 6, 2009 Resolution of the Court of
Appeals in CA-G.R. CV 80549, and REINSTATES in toto the
June 20, 2003 Decision of the Regional Trial Court of
Manila, Branch 19, in Sp. Proc. 98-90589.
SO ORDERED.
EN BANC
G.R. No. L-15153 August 31, 1960
In the Matter of the summary settlement of the Estate
of the deceased
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-
appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of
Zamboanga City admitting to probate the will of one
Anacleta Abellana. The case was originally appealed to the
Court of Appeals where the following assignment of error
is made:
The appellants respectfully submit that the Trial
Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with
law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of
law the said court has certified the case to us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and
Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and
consists of two (2) typewritten pages (pages 4 and
5 of the record) double space. The first page is
signed by Juan Bello and under his name appears
typewritten "Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951,
Ciudad de Zamboanga',and on the second page
appears the signature of three (3) instrumental
witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the
signature of T. de los Santos and below his
signature is his official designation as the notary
public who notarized the said testament. On the
first page on the left margin of the said instrument
also appear the signatures of the instrumental
witnesses. On the second page, which is the last
page of said last Will and Testament, also appears
the signature of the three (3) instrumental
witnesses and on that second page on the left
margin appears the signature of Juan Bello under
whose name appears handwritten the following
phrase, "Por la Testadora Anacleta Abellana'. The
will is duly acknowledged before Notary Public
Attorney Timoteo de los Santos. (Emphasis
supplied)
The appeal squarely presents the following issue: Does the
signature of Dr. Juan A. Abello above the typewritten
statement "Por la Testadora Anacleta Abellana . . ., Ciudad
de Zamboanga," comply with the requirements of law
prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part
provides as follows:
Every will, other than a holographic will, must
be subscribed at the end thereof by the testator
himself orby 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 witness in the presence of the
testator and of one another. (Emphasis supplied.)
The clause "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,"
is practically the same as the provisions of Section 618 of
the Code of Civil Procedure (Act No. 190) which reads as
follows:
No will, except as provided in the preceding
section shall be valid to pass 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'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
each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the
testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in
his presence and by his express direction. Applying this
provision this Court said in the case of Ex Parte Pedro
Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section
618 of the Code of Civil Procedure that where the
testator does not know how, or is unable, to sign,
it will not be sufficient that one of the attesting
witnesses signs the will at the testator's request,
the notary certifying thereto as provided in Article
695 of the Civil Code, which, in this respect, was
modified by section 618 above referred to, but it is
necessary that the testator's name be written by
the person signing in his stead in the place where
he could have signed if he knew how or was able
to do so, and this in the testator's presence and by
his express direction; so that a will signed in a
manner different than that prescribed by law shall
not be valid and will not be allowed to be
probated.
Where a testator does not know how, 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 Doe; or in this
form: "By the testator, John Doe, Richard Doe." All
this must be written by the witness signing at the
request of the testator.
Therefore, under the law now in force, the witness
Naval A. Vidal should have written at the bottom
of the will the full name of the testator and his
own name in one forms given above. He did not do
so, however, and this is failure to comply with the
law is a substantial defect which affects the
validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to
oppose it.
The same ruling was laid down in the case of Cuison vs.
Concepcion, 5 Phil., 552. In the case of Barut vs.
Cabacungan, 21 Phil., 461, we held that the important
thing is that it clearly appears that the name of the
testatrix was signed at her express direction; it is
unimportant whether the person who writes the name of
the testatrix signs his own or not. Cases of the same import
areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs. Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta
Abellana, does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello. There is, therefore, a
failure to comply with the express requirement in the law
that the testator must himself sign the will, or that his
name be affixed thereto by some other person in his
presence and by his express direction.
It appearing that the above provision of the law has not
been complied with, we are constrained to declare that the
said will of the deceased Anacleta Abellana may not be
admitted to probate.
WHEREFORE, the decision appealed from is hereby set
aside and the petition for the probate of the will denied.
With costs against petitioner.
Paras, C.J., Bengzon, Padilla, Concepcion, Reyes, J.B.L.,
Barrera, Gutierrez David and Dizon, JJ., concur.
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.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the
Court of First Instance of Southern Leyte, Branch III, in
Special Proceedings No. R-1713, entitled "In the Matter of
the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner", which denied the
probate of the will, the motion for reconsideration and the
motion for appointment of a special administrator.
In the petition for probate filed with the respondent court,
the petitioner attached the alleged last will and testament
of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page
contains the entire testamentary dispositions and is signed
at the end or bottom of the page by the testatrix alone and
at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation
clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and
at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's
compliance with the requirement of publication, the trial
court commissioned the branch clerk of court to receive
the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will, who testified
on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C.
Pamatian issued the questioned order denying the probate
of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with
their corresponding addresses so that they could be
properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the
petitioner filed a manifestation and/or motion, ex
partepraying for a thirty-day period within which to
deliberate on any step to be taken as a result of the
disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of
intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the
order denying the probate of the will. However, the motion
together with the previous manifestation and/or motion
could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still pending
resolution when respondent Judge Avelino S. Rosal
assumed the position of presiding judge of the respondent
court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the motion for
reconsideration as well as the manifestation and/or
motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was
likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names
of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of
the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one
another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will,
must be subscribed at the end thereof by
the testator himself or by the testator's
name written by some other person in his
presence, and by his express direction,
and attested and subscribed by three or
more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by
him to write his name and the
instrumental witnesses of the will, shall
also sign, as aforesaid, each and every
page thereof, except the last, on the left
margin, and all the pages shall be
numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of
pages used upon which the will is written,
and the fact that the testator signed the
will and every page thereof, or caused
some other person to write his name,
under his express direction, in the
presence of the instrumental witnesses,
and that the lacier witnesses and signed
the will and the pages thereof in the
presence of the testator and of one
another.
If the attestation clause is in a language
not known to the witnesses, it shall be
interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted
provision of law to require that, for a notarial will to be
valid, it is not enough that only the testatrix signs at the
"end" but an the three subscribing witnesses must also
sign at the same place or at the end, in the presence of the
testatrix and of one another because the attesting
witnesses to a will attest not merely the will itself but also
the signature of the testator. It is not sufficient compliance
to sign the page, where the end of the will is found, at the
left hand margin of that page.
On the other hand, the petitioner maintains that Article
805 of the Civil Code does not make it a condition
precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the
end of the wig after the signature of the testatrix. He
contends that it would be absurd that the legislature
intended to place so heavy an import on the space or
particular location where the signatures are to be found as
long as this space or particular location wherein the
signatures are found is consistent with good faith and the
honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will
must be subscribed or signed at its end by the testator
himself or by the testator's name written by another
person in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to
see and take note mentally that those things are, done
which the statute requires for the execution of a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of
Identification of such paper as the will which was executed
by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it
is our considered view that the will in this case was
subscribed in a manner which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses on the left
margin of the first page of the will attested not only to the
genuineness of the signature of the testatrix but also the
due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be
ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and
fundamental objective permeating the provisions on the
law on wills in this project consists in the liberalization of
the manner of their execution with the end in view of
giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency in
respect to the formalities in the execution of a will" (Report
of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his
questioned order that were not for the defect in the place
of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully
met and satisfied in the present case when the
instrumental witnesses signed at the left margin of the sole
page which contains all the testamentary dispositions,
especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will
executed by the testatrix. There was no question of fraud
or substitution behind the questioned order.
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire wig that it is really and actually
composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left
margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment.
The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court
made the following observations with respect to the
purpose of the requirement that the attestation clause
must state the number of pages used:
The law referred to is article 618 of the
Code of Civil Procedure, as amended by
Act No. 2645, which requires that the
attestation clause shall state the number
of pages or sheets upon which the win is
written, which requirement has been held
to be mandatory as an effective safeguard
against the possibility of interpolation or
omission of some of the pages of the will
to the prejudice of the heirs to whom the
property is intended to be bequeathed (In
re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that
the attestation clause must contain a
statement of the number of sheets or
pages composing the will and that if this
is missing or is omitted, it will have the
effect of invalidating the will if the
deficiency cannot be supplied, not by
evidence aliunde, but by a consideration
or examination of the will itself. But here
the situation is different. While the
attestation clause does not state the
number of sheets or pages upon which
the will is written, however, the last part
of the body of the will contains a
statement that it is composed of eight
 pages, which circumstance in our opinion
takes this case out of the rigid rule of
construction and places it within the
realm of similar cases where a broad and
more liberal view has been adopted to
prevent the will of the testator from being
defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following
ruling which applies a similar liberal approach:
... Impossibility of substitution of this page
is assured not only (sic) the fact that the
testatrix and two other witnesses did sign
the defective page, but also by its bearing
the coincident imprint of the seal of the
notary public before whom the testament
was ratified by testatrix and all three
witnesses. The law should not be so
strictly and literally interpreted as to
penalize the testatrix on account of the
inadvertence of a single witness over
whose conduct she had no control where
the purpose of the law to guarantee the
Identity of the testament and its
component pages is sufficiently attained,
no intentional or deliberate deviation
existed, and the evidence on record
attests to the fun observance of the
statutory requisites. Otherwise, as stated
in Vda. de Gil. Vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage
the will by muddling or bungling it or the
attestation clause.
WHEREFORE, the present petition is hereby granted. The
orders of the respondent court which denied the probate
of tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special
administrator are set aside. The respondent court is
ordered to allow the probate of the wig and to conduct
further proceedings in accordance with this decision. No
pronouncement on costs.
SO ORDERED.
THIRD DIVISION
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO
substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will,
purportedly executed by Eugenia E. Igsolo (decedent), who
died on 16 December 1982 at the age of 80. In refusing to
give legal recognition to the due execution of this
document, the Court is provided the opportunity to assert
a few important doctrinal rules in the execution of notarial
wills, all self-evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does not contain the
number of pages on which the will is written is fatally
defective. A will whose attestation clause is not signed
by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not
contain an acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is sufficient to deny
probate. A notarial will with all three defects is just
aching for judicial rejection.
There is a distinct and consequential reason the Civil Code
provides a comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and faithful
compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article
806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a
notary public by the testator and the witnesses. A notarial
will executed with indifference to these two codal
provisions opens itself to nagging questions as to its
legitimacy.
The case stems from a petition for probate filed on 10 April
1984 with the Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought to admit to
probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the
cousin of the decedent.
The will, consisting of two (2) pages and written in the
vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,
Sampaloc, Manila, pitongput siyam (79) na gulang, nasa
hustong pagi-isip, pag-unawa at memoria ay nag-hahayag
na ito na ang aking huling habilin at testamento, at binabali
wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del
Norte, La Loma sang-ayong sa kaugalian at patakaran ng
simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-
ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng
karapatan sa aking pamangkin na si Felix Azuela, na siyang
nag-alaga sa akin sa mahabang panahon, yaong mga bahay
na nakatirik sa lote numero 28, Block 24 at nakapangalan
sa Pechaten Korporasyon, ganoon din ibinibigay ko ang
lahat ng karapatan sa bahay na nakatirik sa inoopahan
kong lote, numero 43, Block 24 na pag-aari ng Pechaten
Corporation. Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San Diego St., Lot
42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
nagpapatupad ng huling habiling ito at kagustuhan ko rin
na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila
ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang
huling dahong ito, na ipinahayag sa amin ni Eugenia E.
Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon pointed out that decedents signature did not appear on
ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing the second page of the will, and the will was not properly
tagapagmana sa ilalim ng kasulatang nabanggit at sa acknowledged. These twin arguments are among the
kaliwang panig ng lahat at bawat dahon, sa harap ng lahat central matters to this petition.
at bawat sa amin, at kami namang mga saksi ay lumagda After due trial, the RTC admitted the will to probate, in an
sa harap ng nasabing tagapagmana at sa harap ng lahat at Order dated 10 August 1992.6 The RTC favorably took into
bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa account the testimony of the three (3) witnesses to the
kaliwang panig ng lahat at bawat dahon ng kasulatan ito. will, Quirino Agrava, Lamberto Leano, and Juanito Estrada.
EUGENIA E. IGSOLO The RTC also called to fore "the modern tendency in
address: 500 San Diego St. respect to the formalities in the execution of a will x x x
Sampaloc, Manila Res. Cert. No. A-7717-37 with the end in view of giving the testator more freedom in
Issued at Manila on March 10, 1981. expressing his last wishes;"7 and from this perspective,
QUIRINO AGRAVA rebutted oppositors arguments that the will was not
address: 1228-Int. 3, Kahilum properly executed and attested to in accordance with law.
Pandacan, Manila Res. Cert. No. A-458365 After a careful examination of the will and consideration of
Issued at Manila on Jan. 21, 1981 the testimonies of the subscribing and attesting witnesses,
LAMBERTO C. LEAO and having in mind the modern tendency in respect to the
address: Avenue 2, Blcok 7, formalities in the execution of a will, i.e., the liberalization
Lot 61, San Gabriel, G.MA., Cavite Res. of the interpretation of the law on the formal requirements
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, of a will with the end in view of giving the testator more
1981 freedom in expressing his last wishes, this Court is
JUANITO ESTRERA persuaded to rule that the will in question is authentic and
address: City Court Compound, had been executed by the testatrix in accordance with law.
City of Manila Res. Cert. No. A574829 On the issue of lack of acknowledgement, this Court has
Issued at Manila on March 2, 1981. noted that at the end of the will after the signature of the
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, testatrix, the following statement is made under the sub-
1981 dito sa Lungsod ng Maynila. title, "Patunay Ng Mga Saksi":
(Sgd.) "Ang kasulatang ito, na binubuo ng _____ dahon pati ang
PETRONIO Y. BAUTISTA huling dahong ito, na ipinahayag sa amin ni Eugenia N.
Doc. No. 1232 ; NOTARIO PUBLIKO Igsolo, tagapagmana na siya niyang Huling Habilin,
Page No. 86 ; Until Dec. 31, 1981 ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
Book No. 43 ; PTR-152041-1/2/81-Manila tagapagmana sa ilalim ng kasulatang nabanggit at sa
Series of 1981 TAN # 1437-977-81 kaliwang panig ng lahat at bawat dahon, sa harap ng lahat
The three named witnesses to the will affixed their at bawat sa amin, at kami namang mga saksi ay lumagda
signatures on the left-hand margin of both pages of the sa harap ng nasabing tagapagmana at sa harap ng lahat at
will, but not at the bottom of the attestation clause. bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa
The probate petition adverted to only two (2) heirs, kaliwang panig ng lahat at bawat dahon ng kasulatan ito."
legatees and devisees of the decedent, namely: petitioner The aforequoted declaration comprises the attestation
himself, and one Irene Lynn Igsolo, who was alleged to clause and the acknowledgement and is considered by this
have resided abroad. Petitioner prayed that the will be Court as a substantial compliance with the requirements of
allowed, and that letters testamentary be issued to the the law.
designated executor, Vart Prague. On the oppositors contention that the attestation clause
The petition was opposed by Geralda Aida Castillo was not signed by the subscribing witnesses at the bottom
(Geralda Castillo), who represented herself as the thereof, this Court is of the view that the signing by the
attorney-in-fact of "the 12 legitimate heirs" of the subscribing witnesses on the left margin of the second
decedent.2 Geralda Castillo claimed that the will is a page of the will containing the attestation clause and
forgery, and that the true purpose of its emergence was so acknowledgment, instead of at the bottom thereof,
it could be utilized as a defense in several court cases filed substantially satisfies the purpose of identification and
by oppositor against petitioner, particularly for forcible attestation of the will.
entry and usurpation of real property, all centering on With regard to the oppositors argument that the will was
petitioners right to occupy the properties of the not numbered correlatively in letters placed on upper part
decedent.3 It also asserted that contrary to the of each page and that the attestation did not state the
representations of petitioner, the decedent was actually number of pages thereof, it is worthy to note that the will
survived by 12 legitimate heirs, namely her grandchildren, is composed of only two pages. The first page contains the
who were then residing abroad. Per records, it was entire text of the testamentary dispositions, and the
subsequently alleged that decedent was the widow of second page contains the last portion of the attestation
Bonifacio Igsolo, who died in 1965,4 and the mother of a clause and acknowledgement. Such being so, the defects
legitimate child, Asuncion E. Igsolo, who predeceased her are not of a serious nature as to invalidate the will. For the
mother by three (3) months.5 same reason, the failure of the testatrix to affix her
Oppositor Geralda Castillo also argued that the will was signature on the left margin of the second page, which
not executed and attested to in accordance with law. She
contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of
the testatrix on the will is a forgery, the testimonies of the
three subscribing witnesses to the will are convincing
enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by
Ernesto Castillo, who had substituted his since deceased
mother-in-law, Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed the trial court
and ordered the dismissal of the petition for probate. 9 The
Court of Appeals noted that the attestation clause failed to
state the number of pages used in the will, thus rendering
the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805
of the Civil Code that "the number of pages used in a
notarial will be stated in the attestation clause" is merely
directory, rather than mandatory, and thus susceptible to
what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles
805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one
defect, the failure of the attestation clause to state the
number of pages of the will. But an examination of the will
itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause
fails to state the number of pages of the will.12 There was
an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number
of pages in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing
the trial court, citing in the process Uy Coque v. Navas L.
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court
noted that among the defects of the will in question was
the failure of the attestation clause to state the number of
pages contained in the will.15 In ruling that the will could
not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day:
"The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document
might easily be so prepared that the removal of a sheet
would completely change the testamentary
dispositions of the will and in the absence of a
statement of the total number of sheets such removal
might be effected by taking out the sheet and changing
the numbers at the top of the following sheets or
pages. If, on the other hand, the total number of sheets is
stated in the attestation clause the falsification of the
document will involve the inserting of new pages and the
forging of the signatures of the testator and witnesses in
the margin, a matter attended with much greater
difficulty."16
The case of In re Will of Andrada concerned a will the
attestation clause of which failed to state the number of
sheets or pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be denied
that the x x x requirement affords additional security
against the danger that the will may be tampered with; and
as the Legislature has seen fit to prescribe this
requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the
Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the
number of pages of the will. Yet the appellate court itself
considered the import of these two cases, and made the
following distinction which petitioner is unable to rebut,
and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will
readily show that the attestation does not state the
number of pages used upon which the will is written.
Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme
Court in "Manuel Singson versus Emilia Florentino, et al.,
92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino
Rosal, et al., 118 SCRA 195," to the effect that a will may
still be valid even if the attestation does not contain the
number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is
so because, in the case of "Manuel Singson versus Emilia
Florentino, et al., supra," although the attestation in the
subject Will did not state the number of pages used in the
will, however, the same was found in the last part of the
body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires
that the attestation clause shall state the number of pages
or sheets upon which the will is written, which
requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice
of the heirs to whom the property is intended to be
bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque
vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50
Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the
will and that if this is missing or is omitted, it will have the
effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration
or examination of the will itself. But here the situation is
different. While the attestation clause does not state the
number of sheets or pages upon which the will is
written, however, the last part of the body of the will
contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm
of similar cases where a broad and more liberal view has
been adopted to prevent the will of the testator from being
defeated by purely technical considerations." (page 165-
165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et
al." supra, the notarial acknowledgement in the Will states
the number of pages used in the:
"x x x
We have examined the will in question and noticed that
the attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal
defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the
bottom while the instrumental witnesses signed at the left
margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that
"this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used
in the will is not stated in any part of the Will. The will
does not even contain any notarial acknowledgment
wherein the number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the
enactment of the Civil Code in 1950, at a time when the
statutory provision governing the formal requirement of
wills was Section
618 of the Code of Civil Procedure.22 Reliance on these
cases remains apropos, considering that the requirement
that the attestation state the number of pages of the will is
extant from Section 618.23 However, the enactment of the
Civil Code in 1950 did put in force a rule of interpretation
of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of
the Civil Code states: "In the absence of bad faith, forgery,
or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid
if it is proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil
Code Commission, which stated that "the underlying and
fundamental objective permeating the provisions on the
[law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the
end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in
the execution of wills."24 However, petitioner conveniently
omits the qualification offered by the Code Commission in
the very same paragraph he cites from their report, that
such liberalization be "but with sufficient safeguards and
restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence
upon the testator."25
Caneda v. Court of Appeals26 features an extensive
discussion made by Justice Regalado, speaking for the
Court on the conflicting views on the manner of
interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy
Coque and Andrada are cited therein, along with several
other cases, as examples of the application of the rule of
strict construction.28 However, the Code Commission
opted to recommend a more liberal construction through
the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes
as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered;
whether the signatures appear in each and every page;
whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in
the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons
required to sign did so in the presence of each other
must substantially appear in the attestation clause,
being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice
J.B.L. Reyes in its assailed decision, considering that the
failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed
to state that the witnesses subscribed their respective
signatures to the will in the presence of the testator and of
each other,30 the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as
it now stands, is that omission which can be supplied by an
examination of the will itself, without the need of resorting
to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those
omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."31 Thus,
a failure by the attestation clause to state that the testator
signed every page can be liberally construed, since that
fact can be checked by a visual examination; while a failure
by the attestation clause to state that the witnesses signed
in one anothers presence should be considered a fatal flaw
since the attestation is the only textual guarantee of
compliance.32
The failure of the attestation clause to state the number of
pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any
increase or decrease in the pages.33 The failure to state the
number of pages equates with the absence of an averment
on the part of the instrumental witnesses as to how many
pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how
many pages it is comprised of, as was the situation
in Singson and Taboada. However, in this case, there could
have been no substantial compliance with the
requirements under Article 805 since there is no
statement in the attestation clause or anywhere in the will
itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the
need to comply with the formal requirements as
enumerated under Article 805. Whatever the inclinations
of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe
substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that
these remained effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords
the public a high degree of comfort that the testator
himself or herself had decided to convey property post
mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in
the cited comments of the Code Commission, is for the
fruition of the testators incontestable desires, and not
for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of
Appeals. However, an examination of the will itself reveals
a couple of even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of
the will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before
the notary public.
Cagro v. Cagro36 is material on this point. As in this case,
"the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the
left-hand margin."37 While three (3) Justices38 considered
the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief
Justice Paras, ruled that the attestation clause had not been
duly signed, rendering the will fatally defective.
There is no question that the signatures of the three
witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the
appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the
will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an
act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the
three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient,
it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and
any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro.
Article 805 particularly segregates the requirement that
the instrumental witnesses sign each page of the will, from
the requisite that the will be "attested and subscribed by
[the instrumental witnesses]." The respective intents
behind these two classes of signature are distinct from
each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the
other hand, the signatures to the attestation clause
establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause
results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures
cannot demonstrate these witnesses undertakings in the
clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the
witnesses in this case signed the attestation clause itself,
but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental
witnesses signatures on each and every page, the fact
must be noted that it is the attestation clause which
contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses,
and not the testator, who are required under Article 805 to
state the number of pages used upon which the will is
written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that
the witnesses have stated these elemental facts would be
their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been
validly attested to by the instrumental witnesses, as they
failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the
denial of this petition should also hinge. The requirement
under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses"
has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The
non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio
Y. Bautista, wrote "Nilagdaan ko at ninotario ko
ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those
words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and
declaring it to be his act or deed.41 It involves an extra step
undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the
notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat,
even though it does not hew to the usual language thereof.
A jurat is that part of an affidavit where the notary certifies
that before him/her, the document was subscribed and
sworn to by the executor.42 Ordinarily, the language of
the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the
notary public averred that he himself "signed and
notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and
swearing in of the executors of the document, which in this
case would involve the decedent and the instrumental
witnesses.
Yet even if we consider what was affixed by the notary
public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that
the will be "acknowledged", and not merely subscribed
and sworn to. The will does not present any textual proof,
much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their
own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against
spurious wills or those made beyond the free consent of
the testator. An acknowledgement is not an empty
meaningless act.43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before
an officer of the law that they had executed and subscribed
to the will as their own free act or deed. Such declaration is
under oath and under pain of perjury, thus allowing for the
criminal prosecution of persons who participate in the
execution of spurious wills, or those executed without the
free consent of the testator. It also provides a further
degree of assurance that the testator is of certain mindset
in making the testamentary dispositions to those persons
he/she had designated in the will.
It may not have been said before, but we can assert the
rule, self-evident as it is under Article 806. A notarial will
that is not acknowledged before a notary public by the
testator and the witnesses is fatally defective, even if it
is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which
were not fully satisfied by the will in question. We need
not discuss them at length, as they are no longer material
to the
disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and
every page of the will on the left margin, except the last;
and that all the pages shall be numbered correlatively in
letters placed on the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to sign both
pages of the will on the left margin, her only signature
appearing at the so-called "logical end"44 of the will on its
first page. Also, the will itself is not numbered correlatively
in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the
notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by
themselves, may not be sufficient to deny probate to a will.
Yet even as these omissions are not decisive to the
adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard
for the requirements under Article 805 by whoever
executed the will.
All told, the string of mortal defects which the will in
question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
G.R. No. 42258 September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO
PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for
petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina
Tolentino, pending resolution: That of January 29, 1935,
praying for the reconsideration of the decision of the court
and that of the same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon
the following facts relied upon in her pleading:
1. That the testatrix did not personally place her
thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to
write her name and surname on the spaces of the will
where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix
on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the
testatrix was no longer in a physical or mental condition to
make it.
We have again reviewed the evidence to determine once
more whether the errors assigned by the oppositor in her
brief have not been duly considered, whether some fact or
detail which might have led us to another conclusion has
been overlooked, or whether the conclusions arrived at in
our decision are not supported by the evidence. We have
found that the testatrix Leoncia Tolentino,
notwithstanding her advanced age of 92 years, was in good
health until September 1, 1933. She had a slight cold on
said date for which reason she was visited by her
physician, Dr. Florencio Manuel. Said physician again
visited her three or four days later and found her still
suffering from said illness but there was no indication that
she had but a few days to live. She ate comparatively well
and conserved her mind and memory at least long after
noon of September 7, 1933. She took her last nourishment
of milk in the morning of the following day, September 8,
1933, and death did not come to her until 11 o'clock sharp
that morning.
The will in question was prepared by Attorney Marciano
Almario between 11 and 12 o'clock noon on September 7,
1933, in the house of the testatrix Leoncia Tolentino, after
she had expressed to said attorney her desire to make a
will and bequeath her property to the petitioner Victorio
Payad in compensation according to her, for his diligent
and faithful services rendered to her. Victorio Payad had
grown up under the care of the testatrix who had been in
her home from childhood. The will was written by
Attorney Almario in his own handwriting, and was written
in Spanish because he had been instructed to do so by the
testatrix. It was later read to her in the presence of Pedro
L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons
who were then present. The testatrix approved all the
contents of the document and requested Attorney Almario
to write her name where she had to sign by means of her
thumbmark in view of the fact that her fingers no longer
had the necessary strength to hold a pen. She did after
having taken the pen and tried to sign without anybody's
help. Attorney Almario proceeded to write the name of the
testatrix on the three pages composing the will and the
testatrix placed her thumbmark on said writing with the
help of said attorney, said help consisting in guiding her
thumb in order to place the mark between her name and
surname, after she herself had moistened the tip of her
thumb with which she made such mark, on the ink pad
which was brought to her for said purpose. Said attorney
later signed the three pages of the will in the presence of
the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz
and Perfecto L. Ona, who, in turn, forthwith signed it
successively and exactly under the same circumstances
above stated.
In support of her claim that the testatrix did not place her
thumbmark on the will on September 7, 1983, and that she
never made said will because she was no longer physically
or mentally in a condition do so, the oppositor cites the
testimony of Julian Rodriguez, Gliceria Quisonia, Paz de
Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they
had not seen Attorney Almario in the morning of
September 7, 1933, in the house of the deceased where
they were then living, and that the first time that they saw
him there was at about 12 o'clock noon on September 8th
of said year, when Leoncia Tolentino was already dead,
Gliceria Quisonia stating that on that occasion Almario
arrived there accompanied only by woman named Pacing.
They did not state that Almario was accompanied by Pedro
L. Cruz, Jose Ferrer Cruz and Perfecto L. Ona, the
instrumental witnesses of the will. Said two witnesses,
however, could not but admit that their room was situated
at the other end of the rooms occupied by the deceased
herself and by the petitioner Victorio Payad, and that their
said room and that of Victorio Payad are separated by the
stairs of the house; that Gliceria Quisonia saw the deceased
only once on the 7th and twice on the 8th, and that Julian
Rodriguez stayed in his room, without leaving it, from 9 to
12 o'clock a. m. on the 7th of said month. Gliceria Quisonia
further stated that in the morning of September 7th, she
prepared the noonday meal in the kitchen which was
situated under the house. Under such circumstances it is
not strange that the two did not see the testatrix when,
according to the evidence for the petitioner, she made her
will and signed it by means of her thumbmark. In order to
be able to see her and also Almario and the instrumental
witnesses of the will, on that occasion, it was necessary for
them to enter the room where the deceased was, or at least
the adjoining room where the will was prepared by
Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that
on the 7th the testatrix was already so weak that she could
not move and that she could hardly be understood because
she could no longer enunciate, making it understood
thereby, that in such condition it was absolutely
impossible for her to make any will. The attorney for the
oppositor insists likewise and more so because, according
to him and his witness Paz de Leon, two days before the
death of the testatrix, or on September 6, 1933, she could
not even open her eyes or make herself understood.
The testimony of said witnesses is not sufficient to
overthrow, or discredit the testimony of the petitioner-
appellant or that of Attorney Almario and the three
instrumental witnesses of the will because, to corroborate
them, we have of record the testimony of the physician of
the deceased and the accountant Ventura Loreto who are
two disinterested witnesses, inasmuch as the outcome of
these proceedings does not affect them in the least. The
two testified that two, three or four days before the death
of the testatrix, they visited her in her home, the former
professionally, and the latter as an acquaintance, and they
then found her not so ill as to be unable to move or hold a
conversation. They stated that she spoke to them
intelligently; that she answered all the questions which
they had put to her, and that she could still move in spite of
her weakness.
In view of the foregoing facts and considerations, we deem
it clear that the oppositor's motion for reconsideration is
unfounded.
The oppositor's motion for a new trial is based upon the
following facts: (1) That upon her death, the deceased left
a letter signed by herself, placed in a stamped envelope
and addressed to Teodoro R. Yangco, with instructions not
to open it until after her death; (2) that there are witnesses
competent to testify on the letter in question, in addition to
other evidence discovered later, which could not be
presented at the trial; (3) that in the letter left by the
deceased, she transfers all her property to Teodoro R.
Yangco stating therein that, upon her death, all the
property in question should become Yangco's. From this
alleged fact, the oppositor infers that the deceased never
had and could not have had the intention to make the will
in question, and (4) that said oppositor knew of the
existence of said letter only after her former attorney,
Alejandro Panis, had been informed thereof in May, 1935,
by one of Teodoro R. Yangco's attorneys named Jose
Cortes.
Subsequent to the presentation of the motion for a new
trial, the oppositor filed another supplementary motion
alleging that she had discovered some additional new
evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio
Payad had called him on September 5, 1933, to prepare the
will of the deceased but he did not do so because after
seeing her he had been convinced that she could not make
a will because she had lost her speech and her eyes were
already closed.
The affidavits of Attorneys Jose Cortes and Gabino
Fernando Viola, substantially affirming the facts alleged by
the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino
Fernando Viola are not and cannot be newly discovered
evidence, and are not admissible to warrant the holding of
a new trial, because the oppositor had been informed of
the facts affirmed by Attorney Jose Cortes in his affidavit
long before this case was decided by this court. It is stated
in said affidavit that in May, 1935, Attorney Jose Cortes
revealed to the attorney for oppositor the fact that the
deceased had left a letter whereby she transferred all her
property to Teodoro R. Yangco, and the judgment was
rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform
the court of said newly discovered evidence inasmuch as
the judgment of the lower court was favorable to her. She,
however, overlooks the fact that she also appealed from
the decision of the lower court and it was her duty, under
the circumstances, to inform this court of the discovery of
said allegedly newly discovered evidence and to take
advantage of the effects thereof because, by so doing, she
could better support her claim that the testatrix made no
will, much less the will in question. Said evidence, is not
new and is not of the nature of that which gives rise to a
new trial because, under the law, in order that evidence
may be considered newly discovered evidence and may
serve as a ground for a new trial, it is necessary (a) that it
could not have been discovered in time, even by the
exercise of due diligence; (b) that it be material, and (c)
that it also be of such a character as probably to change the
result if admitted (section 497, Act No. 190;
Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither material nor
important in the sense that, even considering it newly
discovered evidence, it will be sufficient to support the
decision of the lower court and modify that of this court. It
is simply hearsay or, at most, corroborative evidence. The
letter of the deceased Leoncia Tolentino to Teodoro R.
Yangco would, in the eyes of the law, be considered
important or material evidence but this court has not the
letter in question before it, and no attempt was ever made
to present a copy thereof.
The affidavit of Attorney Gabino Fernando Viola or
testimony he may give pursuant thereto is not more
competent than that of Attorney Jose Cortes because,
granting that when he was called by Victorio Payad to help
the deceased Leoncia Tolentino to make her will and he
went to her house on September 5, 1933, the deceased was
almost unconscious, was unintelligible and could not
speak, it does not necessarily mean that on the day she
made her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her
to dispose of all her property. What Attorney Gabino
Fernando Viola may testify pursuant to his affidavit in
question is not and can not be newly discovered evidence
of the character provided for by law, not only because it
does not exclude the possibility that testatrix had
somewhat improved in health, which possibility became a
reality at the time she made her will because she was then
in the full enjoyment of her mental faculties, according to
the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto
L. Ona, Victorio Payad and Marciano Almario, but also
because during the hearing of these proceedings in the
Court of First Instance, Attorney Viola was present, and the
oppositor then could have very well called him to the
witness stand, inasmuch as her attorney already knew
what Attorney Viola was to testify about, yet she did not
call him. The last fact is shown by the following excerpt
from pages 148 to 150 of the transcript:
Mr. PANIS (attorney for the oppositor, addressing
the court): Your Honor, I should like to present as
the last witness Attorney Fernando Viola who was
called by the petitioner Victoria Payad to prepare
the will of the deceased in his favor on September
5, 1933.
COURT: But, Mr. Panis, are you going to testify for
Attorney Fernando Viola? Mr. PANIS: No, Your
Honor.
COURT: Well, where is that attorney? Where is
that witness whom you wish to call to the witness
stand? Mr. PANIS: Your Honor, he is busy in the
branch, presided over by Judge Sison.
COURT: And when can he come? Mr. PANIS. I
am now going to find out, Your Honor. If the other
party, Your Honor, is willing to admit what said
witness is going to testify in the sense that said
Attorney Fernando Viola went to the house of the
deceased on September 5, 1933, for the purpose of
talking to the deceased to draft the will upon
petition of Mr. Victorio Payad; if the other party
admits that, then I am going waive the
presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We
cannot admit that.
COURT: The court had already assumed
beforehand that the other party would not admit
that proposition.
Mr. PANIS: I request Your Honor to reserve us the
right to call the witness, Mr. Viola, without
 prejudice to the other party's calling the witness it
may wish to call.
COURT: The court reserves to the oppositor its
right to call Attorney Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney
Viola to testify as a witness in her favor, it might have been
because she considered his testimony unimportant and
unnecessary, and at the present stage of the proceedings, it
is already too late to claim that what said attorney may
now testify is a newly discovered evidence.
For the foregoing considerations, those stated by this court
in the original decision, and the additional reason that, as
held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the
right to a new trial on the ground of newly discovered
evidence is limited to ordinary cases pending in this court
on bills of exceptions, the motion for reconsideration and a
new trial filed by the oppositor are hereby denied,
ordering that the record be remanded immediately to the
lower court. So ordered.
EN BANC
G.R. No. L-10907 June 29, 1957
AUREA MATIAS, petitioner,
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET
AL., respondents.
J. Gonzales Orense for petitioner.
Venancio H. Aquino for respondents.
CONCEPCION, J.:
Petitioner Aurea Matias seeks a writ of certiorari to annul
certain orders of Hon. Primitivo L. Gonzales, as Judge of the
Court of First Instance of Cavite, in connection with Special
Proceedings No. 5213 of said court, entitled "Testate
Estate of the Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said special
proceedings with a petition for the probate of a document
purporting to be the last will and testament of her aunt,
Gabina Raquel, who died single on May 8, 1952, at the age
of 92 years. The heir to the entire estate of the deceased
except the properties bequeathed to her other niece and
nephews, namely, Victorina Salud, Santiago Salud,
Policarpio Salud, Santos Matias and Rafael Matias is,
pursuant to said instrument, Aurea Matias, likewise,
appointed therein as executrix thereof, without bond.
Basilia Salud, a first cousin of the deceased, opposed the
probate of her alleged will, and, after appropriate
proceedings, the court, presided over by respondent Judge,
issued an order, dated February 8, 1956, sustaining said
opposition and denying the petition for probate.
Subsequently, Aurea Matias brought the matter on appeal
to this Court (G.R. No. L-10751), where it is now pending
decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved
for the dismissal of Horacio Rodriguez, as special
administrator of the estate of the deceased, and the
appointment, in his stead of Ramon Plata. The motion was
set for hearing on February 23, 1956, on which date the
court postponed the hearing to February 27, 1956.
Although notified of this order, Rodriguez did not appear
on the date last mentioned. Instead, he filed an urgent
motion praying for additional time within which to answer
the charges preferred against him by Basilia Salud and for
another postponement of said hearing. This motion was
not granted, and Basilia Salud introduced evidence in
support of said charges, whereupon respondent Judge by
an order, dated February 27, 1956, found Rodriguez guilty
of abuse of authority and gross negligence, and,
accordingly, relieved him as special administrator of the
estate of the deceased and appointed Basilia Salud as
special administratrix thereof, to "be assisted and advised
by her niece, Miss Victorina Salud," who "shall always act
as aide, interpreter and adviser of Basilia Salud." Said
order, likewise, provided that "Basilia Salud shall be
helped by Mr. Ramon Plata . . . who is hereby appointed as
co-administrator."
On March 8, 1956, Aurea Matins asked that said order of
February 27, 1956, be set aside and that she be appointed
special co-administratrix, jointly with Horacio Rodriguez,
upon the ground that Basilia Salud is over eighty (80)
years of age, totally blind and physically incapacitated to
perform the duties of said office, and that said movant is
the universal heiress of the deceased and the person
appointed by the latter as executrix of her alleged will. This
motion was denied in an order dated March 10, 1956,
which maintained "the appointment of the three above
named persons" Basilia Salud, Ramon Plata and
Victorina Salud "for the management of the estate of the
late Gabina Raquel pending final decision on the probate of
the alleged will of said decedent." However, on March 17,
1956, Basilia Salud tendered her resignation as special
administratrix by reason of physical disability, due to old
age, and recommended the appointment, in her place, of
Victorina Salud. Before any action could be taken thereon,
or on March 21, 1956, Aurea Matias sought a
reconsideration of said order of March 10, 1956. Moreover,
on March 24, 1956, she expressed her conformity to said
resignation, but objected to the appointment, in lieu of
Basilia Salud, of Victorina Salud, on account of her
antagonism to said Aurea Matias she (Victorina Salud)
having been the principal and most interested witness for
the opposition to the probate of the alleged will of the
deceased and proposed that the administration of her
estate be entrusted to the Philippine National Bank, the
Monte de Piedad, the Bank of the Philippine Islands, or any
other similar institution authorized by law therefor, should
the court be reluctant to appoint the movant as special
administratrix of said estate. This motion for
reconsideration was denied on March 26, 1956.
Shortly afterwards, or on June 18, 1956, respondents
Ramon Plata and Victorina Salud requested authority to
collect the rents due, or which may be due, to the estate of
the deceased and to collect all the produce of her lands,
which was granted on June 23, 1956. On June 27, 1956,
said respondents filed another motion praying for
permission to sell the palay of the deceased then deposited
in different rice mills in the province of Cavite, which
respondent judge granted on June 10, 1956. Later on, or on
July 10, 1956, petitioner instituted the present action
against Judge Gonzales, and Victorina Salud and Ramon
Plata, for the purpose of annulling the above mentioned
orders of respondent Judge, upon the ground that the same
had been issued with grave abuse of discretion amounting
to lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner
should have preference in the choice of special
administratrix of the estate of the decedent, she
(petitioner) being the universal heiress to said estate and,
the executrix appointed in the alleged will of the deceased,
that until its final disallowance which has not, as yet,
taken place she has a special interest in said estate, which
must be protected by giving representation thereto in the
management of said estate; that, apart from denying her
any such representation, the management was given to
persons partial to her main opponent, namely, Basilia
Salud, inasmuch as Victorina Salud is allied to her and
Ramon Plata is a very close friend of one of her (Basilia
Salud's) attorneys; that Basilia Salud was made special
administratrix despite her obvious unfitness for said office,
she being over eighty (80) years of age and blind; that said
disability is borne out by the fact that on March 17, 1956,
Basilia Salud resigned as special administratrix upon such
ground; that the Rules of Court do not permit the
appointment of more than one special administrator; that
Horacio Rodriguez was removed without giving petitioner
a chance to be heard in connection therewith; and that
Ramon Plata and Victorina Salud were authorized to
collect the rents due to the deceased and the produce of
her lands, as well to sell her palay, without previous notice
to the petitioner herein.
Upon the other hand, respondents maintain that
respondent Judge acted with the scope of his jurisdiction
and without any abuse of discretion; that petitioner can
not validly claim any special interest in the estate of the
deceased, because the probate of the alleged will and
testament of the latter upon which petitioner relies
has been denied; that Horacio Rodriguez was duly notified
of the proceedings for his removal; and that Victorina
Salud and Ramon Plata have not done anything that would
warrant their removal.
Upon a review of the record, we find ourselves unable to
sanction fully the acts of respondent Judge, for the
following reasons:
1. Although Horacio Rodriguez had notice of the hearing of
the motion for his removal, dated February 17, 1956, the
record shows that petitioner herein received copy of said
motion of February 24, 1956, or the date after that set for
the hearing thereof. Again, notice of the order of
respondent Judge, dated February 23, 1956, postponing
said hearing to February 27, 1956, was not served on
petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed
for the dismissal of Horacio Rodriguez, and the
appointment of Ramon Plata, as special administrator of
said estate. Petitioner had, therefore, no notice that her
main opponent, Basilia Salud, and the latter's principal
witness, Victorina Salud, would be considered for the
management of said. As a consequence, said petitioner had
no opportunity to object to the appointment of Basilia
Salud as special administratrix, and of Victorina Salud, as
her assistant and adviser, and the order of February 27,
1956, to this effect, denied due process to said petitioner.
3. Said order was issued with evident knowledge of the
physical disability of Basilia Salud. Otherwise respondent
Judge would not have directed that she "be assisted and
advised by her niece Victorina Salud," and that the latter
"shall always act as aide, interpreter and adviser of Basilia
Salud."
4. Thus, respondent Judge, in effect, appointed three (3)
special administrators Basilia Salud, Victorina Salud and
Ramon Plata. Indeed, in the order of March 10, 1956,
respondent Judge maintained "the appointment of the
three (3) above-named persons for the management of the
estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No.
5213, an issue arose between Aurea Matias and Basilia
Salud regarding the person to be appointed special
administrator of the estate of the deceased. The former
proposed Horacio Rodriguez, whereas the latter urged the
appointment of Victorina Salud. By an order dated August
11, 1952, the Court, then presided over by Hon. Jose
Bernabe, Judge, decided the matter in favor of Horacio
Rodriguez and against Victorina Salud, upon the ground
that, unlike the latter, who, as a pharmacist and employee
in the Santa Isabel Hospital, resides In the City of Manila,
the former, a practicing lawyer and a former public
prosecutor, and later, mayor of the City of Cavite, is a
resident thereof. In other words, the order of resident
thereof. In other words, the order of respondent Judge of
February 27, 1956, removing Rodriguez and appointing
Victorina Salud to the management of the estate, amounted
to a reversal of the aforementioned order of Judge Bernabe
of August 11, 1952.
6. Although the probate of the alleged will and testament
of Gabina Raquel was denied by respondent Judge, the
order to this effect is not, as yet, final and executory. It is
pending review on appeal taken by Aurea Matias. The
probate of said alleged will being still within realm of legal
possibility, Aurea Matias has as the universal heir and
executrix designated in said instrument a special
interest to protect during the pendency of said appeal.
Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058),
this Court held that a widow, designated as executrix in the
alleged will and testament of her deceased husband, the
probate of which had denied in an order pending appeal,
"has . . . the same beneficial interest after the decision of the
court disapproving the will, which is now pending
appeal, because the decision is not yet final and may be
reversed by the appellate court."
7. The record shows that there are, at least two (2) factions
among the heirs of the deceased, namely, one, represented
by the petitioner, and another, to which Basilia Salud and
Victorina Salud belong. Inasmuch as the lower court had
deemed it best to appoint more than one special
administrator, justice and equity demands that both
factions be represented in the management of the estate of
the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect
that "only one special administrator may be appointed to
administrator temporarily" the estate of the deceased,
must be considered in the light of the facts obtaining in
said case. The lower court appointed therein one special
administrator for some properties forming part of said
estate, and a special administratrix for other properties
thereof. Thus, there were two (2) separate and
independent special administrators. In the case at bar
 there is only one (1) special administration, the powers of
which shall be exercised jointly by two special co-
administrators. In short, the Roxas case is not squarely in
point. Moreover, there are authorities in support of the
power of courts to appoint several special co-
administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs.
Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49;
Davenport vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled
and set aside. The lower court should re-hear the matter of
removal of Horacio Rodriguez and appointment of special
administrators, after due notice to all parties concerned,
for action in conformity with the views expressed herein,
with costs against respondents Victorina Salud and Ramon
Plata. It is so ordered.
EN BANC
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO,
deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains
the following attestation clause:
We, the undersigned, by these presents to declare
that the foregoing testament of Antero Mercado
was signed by himself and also by us below his
name and of this attestation clause and that of the
left margin of the three pages thereof. Page three
the continuation of this attestation clause; this will
is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the
corresponding number in letter which compose of
three pages and all them were signed in the
presence of the testator and witnesses, and the
witnesses in the presence of the testator and all
and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this
the third day of January, one thousand nine
hundred forty three, (1943) A.D.
Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino
Javier who wrote the name of Antero Mercado, followed
below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of
Ilocos Norte, ruled that the attestation clause failed (1) to
certify that the will was signed on all the left margins of the
three pages and at the end of the will by Atty. Florentino
Javier at the express request of the testator in the presence
of the testator and each and every one of the witnesses; (2)
to certify that after the signing of the name of the testator
by Atty. Javier at the former's request said testator has
written a cross at the end of his name and on the left
margin of the three pages of which the will consists and at
the end thereof; (3) to certify that the three witnesses
signed the will in all the pages thereon in the presence of
the testator and of each other.
In our opinion, the attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his
express direction, as required by section 618 of the Code of
Civil Procedure. The herein petitioner (who is appealing by
way of certiorari from the decision of the Court of Appeals)
argues, however, that there is no need for such recital
because the cross written by the testator after his name is
a sufficient signature and the signature of Atty. Florentino
Javier is a surplusage. Petitioner's theory is that the cross
is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin,
55 Phil., 479; Payadvs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil.,
429.
It is not here pretended that the cross appearing on the
will is the usual signature of Antero Mercado or even one
of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of
the cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to
determine there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the
presence of the witnesses, and by the latter in the presence
of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with
against the petitioner. So ordered.