Testamentary Succession Notarial Wills Part I Cases 1 15

388
SUPREME COURT REPORTS ANNOTATED
Suroza vs. Honrado
Adm. Matter No. 2026-CFI. December 19, 1981.*

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONRADO of the Court of First Instance
of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.
Judges; Testate Succession; Misconduct defined.Administrative action may be taken against a judge
of the court of first instance for serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct
implies malice or a wrongful intent, not a mere error of judgment. For serious misconduct to exist,
there must be reliable evidence showing that the judicial acts complained of were corrupt or inspired by
an intention to violate the law, or were in persistent disregard of well-known legal rules (In re
Impeachment of Horrilleno, 43 Phil. 212, 214215).
Same; Same; Inefficiency defined.Inefficiency implies negligence, incompetence, ignorance and

carelessness. A judge would be inexcusably negligent if he failed to observe in the performance of his
duties that diligence, prudence and circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
Same; Same; Inasmuch as the will written in English says that it was in a language understood and known
to the testatrix, but also states that it was translated into the Filipino language, the probate judge
should have readily perceived that the testatrix is illiterate and the will is void.In the opening
paragraph of the will, it was stated that English was a language understood and known to the testatrix.
But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into
Filipino language. (p. 16, Record of testate case). That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is void because of the mandatory
provision of article 804 of the Civil Code that every will must be executed in a language or dialect known
to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was
disallowed (Acop vs. Piraso, 52 Phil. 660).
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* SECOND DIVISION
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VOL. 110, DECEMBER 19, 1981
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Suroza vs. Honrado
Page 1 of 145
Same; Same; Trial judge should have observed the hasty preparation of the will which repeatedly
referred to the testatrix as testator."The hasty preparation of the will is shown in the attestation
clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
testator instead of testatrix. Had respondent judge been careful and observant, he could have noted
not only the anomaly as to the language of the will but also that there was something wrong in
instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father
who was still alive.
Same; Same; Judge should have noticed that the notary was not presented.Furthermore, after the
hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the
notary was not presented as a witness.
Same; Same; Probate judge should personally conduct hearing of will in spite of lack of opposition. Judge
fined the equivalent of 1, months salary.In spite of the absence of an opposition, respondent judge
should have personally conducted the hearing on the probate of the will so that he could have
ascertained whether the will was validly executed. Under the circumstances, we find his negligence and
dereliction of duty to be inexcusable.
ADMINISTRATIVE MATTER in the Supreme Court.
The facts are stated in the opinion of the Court.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a will, which
on its face is void because it is written in English, a language not known to the illiterate testatrix, and
which is probably a forged will because she and the attesting witnesses did not appear before the notary
as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of
Appeals which reveal the following tangled strands of human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
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Suroza vs. Honrado
childless. They reared a boy named Agapito who used the surname Suroza and who considered them as
his parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No.
Page 2 of 145
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veterans widow, became a pensioner of the Federal Government.
That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance
of Rizal, Pasig Branch I. (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 6163, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenitas
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veterans
hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named
Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of
Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 2326, Rollo of CA-G.R. No. SP-08654-R). Marilyn
used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.
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Suroza vs. Honrado
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old.
That will, which is in English, was thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 3839, CA Rollo). In that will, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death,
she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter lot
and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).
Page 3 of 145
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (p. 97, CA Rollo) and the
executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyns husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelinas
alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following
day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank
of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them
to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy
sheriff to eject the occupants of the testatrixs house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelinas estate. She
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Suroza vs. Honrado
and the other occupants of the decedents house filed on April 18 in the said proceeding a motion to set
aside the order of April 11 ejecting them. They alleged that the decedents son Agapito was the sole heir
of the deceased, that he has a daughter named Lilia, that Nenita was Agapitos guardian and that Marilyn
was not Agapitos daughter nor the decedents granddaughter (pp. 5268, Record of testate case). Later,
they questioned the probate courts jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelinas estate, he issued on April 23 an order probating her supposed will wherein Marilyn
was the instituted heiress (pp. 7477, Record).
On April 24, Nenita filed in the testate case an omnibus petition to set aside proceedings, admit
opposition with counterpetition for administration and preliminary injunction. Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed
and attested, that it was procured by means of undue influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were procured by fraud or trick.
Page 4 of 145
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito
and that Marina was not qualified to act as executrix (pp. 8391, Record).
To that motion was attached an affidavit of Zenaida A. Peaojas, the housemaid of Marcelina, who swore
that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion
to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed
the due execution of the will and stated the names and addresses of Marcelinas intestate heirs, her
nieces and nephews (pp. 113121, Record). Nenita was not aware of the decree of probate dated April
23, 1975.
To that opposition was attached an affidavit of Dominga
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Suroza vs. Honrado
Salvador Teodocio, Marcelinas niece, who swore that Marcelina never executed a will (pp. 124125,
Record).
Marina in her answer to Nenitas motion to set aside the proceedings admitted that Marilyn was not
Marcelinas granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was
not Marcelinas son but merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenitas counter-petition for the issuance of letters
of administration because of the nonappearance of her counsel at the hearing. She moved for the
reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208209, Record).
Judge Honrado in his order of June 8, 1976 denied the various incidents raised by Nenita (p. 284,
Record).
Instead of appealing from that order and the order probating the will, Nenita filed a case to annul the
probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p.
398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977 (pp.
398402, Record).
Page 5 of 145
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in which the will was written. (In
the decree of probate Judge Honrado did not make any finding that the will was written in a language
known to the testatrix.)
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Suroza vs. Honrado
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named
Agapito (the testatrixs supposed sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix
did not know the executrix Marina Paje, that the beneficiarys real name is Marilyn Sy and that she was
not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits of Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita)
had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to
desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and,
should she persist, she might lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion
dated July 6, 1976 she asked for a thirtyday period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenitas imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Page 6 of 145
Evangeline strongly, vehemently and flatly denied Nenitas charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita
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Suroza vs. Honrado
could get a favorable decision. Evangeline also denied that she has any knowledge of Nenitas pension
from the Federal Government.
The 1978 complaint against Judge Honrado was brought to the attention of this Court in the Court
Administrators memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of
the Court of Appeals for investigation, report and recommendation. He submitted a report dated
October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings
in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that
the testatrix and the three attesting witnesses did not appear before him and that he notarized the will
just to accommodate a brotherlawyer on the condition that said lawyer would bring to the notary the
testatrix and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenitas remedy was an appeal and her failure to
do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper disposition of
the testate case which might have resulted in a miscarriage of justice because the decedents legal heirs
and not the instituted heiress in the void will should have inherited the decedents estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).
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396
Page 7 of 145
Suroza vs. Honrado
Administrative action may be taken against a judge of the court of first instance for serious misconduct
or inefficiency (Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error
of judgment. For serious misconduct to exist, there must be reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules (In re Impeachment of Horrilleno, 43 Phil. 212, 214215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inexcusably
negligent if he failed to observe in the performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case
No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language understood and known
to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and
translated into Filipino language. (p. 16, Record of testate case). That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be executed in a language or
dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator,
is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as the testator instead of testatrix.
Had respondent judge been careful and observant, he could have noted not only the anomaly as to the
language of the will but also that there was something wrong in instituting the
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Suroza vs. Honrado
supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still
alive.
Page 8 of 145
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could
have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his
salary for one month is imposed on respondent judge (his compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has become moot and academic because she is no longer employed
in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City. She is beyond
this Courts disciplinary jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21,1980,101
SCRA 225).
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin, JJ., concur.
Concepcion, Jr., J., on leave.
Abad Santos, J., took no part.
Respondent fined equivalent to his salary for one (1) month.
Notes.Judges must be models of uprightness, fairness and honesty. (Rural Bank of Barotac Nuevo, Inc.
vs. Cartagena, 84 SCRA 128).
Judges are enjoined to be diligent in the performance of their duties. (Rodriguez vs. Barro, 84 SCRA 663).
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To vs. Distor
Judges should act in a manner as to be above suspicion and keep themselves abreast of the latest laws.
(Vasquez vs. Malvar, 85 SCRA 10).
To be held guilty of rendering an unjust judgment it must be shown that the respondent judge rendered
same with the deliberate intent to do an injustice. (Sta. Maria vs. Ubay, 87 SCRA 179).
Page 9 of 145
Members of the bench should refrain from any conduct that would in any way give rise to a suspicion,
whether unfounded or not, that he exhibits more concern for those blessed with affluence. (Azurpado
vs. Buenviaje, 82 SCRA 369).
Malfeasance in office cannot be charged except for breach of positive statutory duty or for the
performance of a discretionary act with an improper for corrupt motive. (Valdez vs. Valera, 81 SCRA
246).
The appointment of an ancillary administrator is committed to the wisdom of the trial court in
inheritance cases. (Macias vs. Cruz, 49 SCRA 80).
A statement that the testator owns the southern half of the conjugal estate is contrary to law because
spouses are proindiviso owners thereof. (Balanay vs. Martinez, 64 SCRA 452).
A husbands renunciation of hereditary rights and share in the conjugal estate make these assets part of
the testators estate, but without prejudice to creditors and other heirs. (Balanay vs. Martinez, 64 SCRA
452).
The fact that the decedents last will and testament was never probated may not bar a transmission of
the estate where a partition agreement was entered into which was based on the will itself. (Chua vs.
Court of First Instance, 78 SCRA 412). Suroza vs. Honrado, 110 SCRA 388, Adm. Matter No. 2026-CFI
December 19, 1981
Page 10 of 145
[No. L-4067. November 29, 1951]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULJANA
LACUESTA, ET AL., respondents.
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OP TESTATOR'S NAMB AT LATTER'S DIRECTION.

When the testator expressly caused another to sign the former's name, this fact must be recited in the
attestation clause. Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS.Where the cross appearing on a will is not the usual
signature of the testator or even one of the ways by which he signed his name, that cross cannot be
considered a valid signature.
PETITION for review by eertiorari of a decision of the Court of Appeals.
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 do 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 of 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 testament, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
(Sgd.) "NUMERIANO EVANGELISTA
(Sgd.) ROSENDO CORTES
(Sgd.) "BIBIANA ILLEGIBLE"
490
490
Page 11 of 145
PHILIPPINE REPORTS ANNOTATED
Garcia vs. Lacuesta, et al.
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado,
followed bclow by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged tc
have written a cross immediately after his name. The Court of Appeals, reversing the judgment 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 s'aid testator has written a cross at the end of his name and on the left margin of the three
pages of which the will consists and at the end thereof; (3) to certify that the three witnesses signed the
will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused
Atty. Florentino Javier to write the testator's name under his express direction, as required by section
618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the
decision of the Court of Appeals) argues, however, that there is no need for such recital because the
cross written by the testator after his name is a sufficient signature and the signature of Atty. Florentino
Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or
even one of the ways by which he signed his name. After
491
VOL. 90, NOVEMBER 29, 1951
491
Castro, et al. vs. Orpiano and Rivera
mature reflection, we are not prepared to liken the mere sign of a 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 whether 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 costs against the petitioner. So ordered.
Page 12 of 145
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, JJ., concur.
Judgment affirmed. Garcia vs. Lacuesta, et al., 90 Phil. 489, No. L-4067 November 29, 1951
Page 13 of 145
[No. 5971. February 27, 1911.]
BEATRIZ NERA ET AL., plaintiffs and appellees, vs. NARCISA RIMANDO, defendant and appellant.
1. EXECUTION OF WlLLS; POSITION OF TESTATOR AND WlTNESS WHEN WILL is SUBSCRIBED.The

position of testator and of the witnesses to a will, at the moment of the subscription by each, must be
such that they may see each other sign if they choose to do so.
2. ID. ; ID.; SIGNING IN THE PRESENCE OF EACH OTHER.The question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its
subscription by each of them, , but whether at that moment existing conditions and the position of the
parties, with relation to each other, were such that by merely casting their eyes in the proper direction
they could have seen each other sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WILL is SIGNED.If one subscribing witness to a
will is shown to have been in an outer room at the time when the testator and the other witnesses
attach their signatures to the instrument in an inner room, the will would be held invalidthe attaching
of the said signatures, under such circumstances, not being done "in the presence" of the witness in the
outer room.
APPEAL from a decree of the Court of First Instance of La Union. Moir, J.
The facts are stated in the opinion of the court.
Valerio Fontanilla and Andres Asprer, for appellant.
Anacleto Diaz, for appellees.
451
VOL. 18, FEBRUARY 27, 1911
451
Nera vs. Rimando.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in the
small room where it was executed at the time when the testator and the other subscribing witnesses
attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large
room connecting with the smaller room by a doorway, across which was hung a curtain which made it
impossible for one in the outside room to see the testator and the other subscribing witnesses in the act
of attaching their signatures to the instrument.
Page 14 of 145
A majority of the members of the court is of opinion that this subscribing witness was in the small room
with the testator and the other subscribing witnesses at the time when they attached their signatures to
the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the
decree admitting the document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down in
the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses
was in the outer room when the testator and the other describing witnesses signed the instrument in
the inner room, had it been proven, would not be sufficient in itself to invalidate the execution of the
will. But we are unanimously of opinion that had this subscribing witness been proven to have been in
the outer room at the time when the testator and the other subscribing witnesses attached their
signatures to the instrument in the inner room, it would 'have been invalid as a will, the attaching of
those signatures under such circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness
452
452
Nera vs. Rimando.
to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain
separating the inner room from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might have seen each other sign, had they chosen to do
so, considering their mental and physical condition and position with relation to each other at the
moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation to each other at the moment
of the subscription of each signature, must be such that they may see each other sign if they choose to
do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to
have executed the instrument in the presence of each other if it appears that they would not have been
able to see each other sign at that moment, without changing their relative positions or existing
conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when
the witness Javellana signed the document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the
proper direction and without any physical obstruction to prevent his doing so." And the decision merely
laid down the doctrine that the question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not depend upon proof of the fact
that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but
Page 15 of 145
that at that moment existing conditions and their position with relation to each other were such that by
merely casting the eyes in the proper direction they could have seen each other sign. To extend the doc-
453
453
United States vs. Alias.
trine further would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one of the
requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the
last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.
Arellano, C. J., Mapa, Moreland, and Trent, JJ., concur.
Decree affirmed. Nera vs. Rimando., 18 Phil. 450, No. 5971 February 27, 1911
Page 16 of 145
422
lcasiano vs. Icasiano
No. L-18979. June 30, 1964.

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE Jo SEFA VILLACORTE. CELSO ICASIANO, petitioner-
appel
423
VOL. 11, JUNE 30, 1964
433
Icasiano vs. Icasiano

lee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Wills; Probate; Policy of Court against undue curtailment of testamentary privileges.The precedents
cited in the case at bar exemplify the Court's policy to require satisfaction of the legal requirements in
the probate of a will in order to guard against fraud and bad faith but without undue or unnecessary
curtailment of the testamentary privilege.
Same; Same; Handwriting expert must have sufficient standards of comparison to prove forgery of
testatrix's signature.The opinion of a handwriting expert trying to prove forgery of the testatrix's
signature fails to convince the court, not only because it is directly contradicted by another expert but
principally because of the paucity of the standards used by him (only three other signatures),
considering the advanced age of the testatrix, the evident variability of her signatures, and the effect of
writing fatigue.
Same; Same; Variance in ink color not reliable when writings affixed to different kinds of paper.The
slight variance in blueness of the ink in the admitted and questioned signatures does not appear reliable,
considering that the standard and challenged writings were affixed to different kinds of paper.
Same; Same; Fraud or undue influence, diversity of apportionment and prohibition against contest no
evidence of.Neither diversity of apportionment nor prohibition against contest is evidence of fraud or
undue influence in the execution of a will.
Same; Same; Fraud and undue influence are repugnant allegations.Allegations of fraud and undue
influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the will.
Same; Same; Inadvertent failure of an attesting witness to affix his signature to one page of a will not
fatal.The inadvertent failure of an attesting witness to affix his signature to one page of a testament,
Page 17 of 145
due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify
denial of probate.
Same; Same; Signed carbon duplicate of will needs no publication.That the signed carbon duplicate of
a will was produced and admitted without a new publication does not affect the jurisdiction of the
probate court, already conferred by the original publication of the petition for probate, where the
amended petition did not substantially alter the first one filed, but merely supplemented it by disclosing
the existence of said duplicate.
424
424
APPEAL from an order of the Court of First Instance of Manila. Caizares, J.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinsin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person ramed therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
Chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the Philippine
Trust Company as special administrator.
Page 18 of 145
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his
own Natividad's opposition to the probate of the alleged will
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June
1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the legal requirements, and
425
VOL. 11, JUNE 30, 1964
425
that he was, on that dates submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only
on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the admission of the amended and supplemental petition, but by
order of July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad
Icasiano filed her amended opposition. Thereafter, the parties presented their respective evidence, and
after several hearings the court issued the order admitting the will and its duplicate to probate, From this
order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00, on
the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila
on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila,
published before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and
Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said
three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and
for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also
present during the execution and signing of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad
were in the Philippines at the time of the hearing, and both testified as to the due execution and
authenticity of the said will So did the Notary Public before whom the will was acknowledged by the
testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he prepared one original and two copies
of Josefa Villacorte's last will and testament at
426
426
SUPREME' COURT REPORTS ANNOTATED
Page 19 of 145
lcasiano vs. Icasiano
his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining
one unsigned copy in Bulacan.
The records show that the original of the will, which. was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and
marked as Exhibit' "A-1" is signed by the testatrix and her three attesting witnesses in each and every
page.
The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the lef t margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney Natividad
011 page three (3) of the original); that pages of the original and duplicate of said will were duly
numbered; that the attestation clause thereof contains all the facts required by law to be recited therein
and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and
spoken by the testatrix; that the attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate copies; and that both the
original and the.duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila
on the same dateJune 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may
have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was
signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the
427
VOL, 11, JUNE 30, 1064
427
duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as "the
original, and. further aver 'that granting. that the documents were genuine, they were executed through
mistake and with undue influence and pressure because the testatrix was deceived into adopting as her
last will and testament the wishes of those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the execution of the will and the
provisions and dispositions thereof, whereby proponents-appellees stand to profit; from properties held
Page 20 of 145
by them as attorneys-in-fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not mentioned in the will, and not to
oppose the probate of it, on penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same
occasion, in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were executed in
Tagalog, a language known to and spoken by both the testator and the witnesses, ,and read to and by
the testatrix and Atty. Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language known to and spoken by the testatrix and the witnesses. The opinion of
expert for oppositors, Mr, Felipe Logan, that the signatures of the testatrix appearing in the duplicate
original were not written by the same hand which wrote the signatures in the original will leaves us
unconvinced, not merely because it is directly contradicted by expert Martin Ramos for the proponents,
but principally because of the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's range of normal
scriptural variation. The expert has, in fact, used as standards only three other signatures of the testatrix
besides those affixed to the original of the testament (Exh. A); and we feel that with so few stand-
428
428
ards the expert's opinion and the signatures in the duplicate could not be those of the testatrix becomes
extremely hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show
convincingly that there are radical differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right the original. These factors were not discussed by the
expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole therefore, we do not find the
testimony of the oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy, being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronel, 45 Phil. 218). Diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The testamentary dispositions that the heirs should
not inquire into other property and that they should respect the distribution made in the will, under
penalty of forfeiture of their shares in the free part do not suffice to prove fraud or undue influence.
Page 21 of 145
They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into the hands of non-heirs
and speculators. Whether these clauses are valid or not is a matter to be litigated on another occasion. It
is also well to note that, as remarked by the Court of Appeals in Sideco vs. Sideco; 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant and exclude each other; their joining as grounds for
opposing probate shows absence of definite evidence against the validity of the will.
429
VOL. 11, JUNE 30, 1964
429
On the question of law, we hold that the inadvertent failure of one witness to af fix his signature to one
page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact
that the testatrix and two other witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix
and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to
the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or
bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown
by his own testimony as well as by the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and the acknowledgment before the Notary
Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied, Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator
and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil.
476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to
make the f irst page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429).
These precedents exemplify the Court's policy to require satisfaction
430
430
Page 22 of 145
of the legal requirements in order to guard 'against fraud and bad faith but without undue or
unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate
(Exh. A-1) is not entitled to probate. Since they opposed probate of original because it lacked one
signature in its third.page, it is easily discerned that oppositors-appellants run here into a dilemma; if the
original is defective and invalid, then in law there is no other will but the duly signed carbon duplicate
(Exh. A-1), and the same is probatable. If the original is valid and can be probated, then the objection to
the signed duplicate need not be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third page of the original
testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of the petition
for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.
Bengzon, C.J., Padilla, Bautista, Angelo, Labrador, Concepcion, Paredes, Regala and Makalintal, JJ.,
concur.
Barrera and Dizon, JJ., took no part,
Decision affirmed.
Notes.Cf. Santos v. De Buenaventura, L-22797, Sept. 22,1966, 18 SCRA 47, where the will provides that
any one of the heirs, legatees, and devisees who contests or opposes
431
VOL. 11, JUNE 80, 1964
431
Klepper vs. American President Lines, Ltd.
Page 23 of 145
the probate of the will or the carrying out of its provisions shall Jose any right to receive any inheritance
or benefit under said will, and their inheritance or share shall pertain to the other heirs who have not
opposed.
It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are regarded
as the best witnesses in connection with its due execution. It is similarly true, however, that to deserve
full credit, their testimony must be reasonable and unbiased, and that, as in the case of any other
witness, their testimony may be overcome by any competent evidence, direct or circumstantial
(Junquera v. Borromeo, et al., L-1849S, March 30, 1967, 19 SCRA 656). lcasiano vs. Icasiano, 11 SCRA 422,
No. L-18979 June 30, 1964
Page 24 of 145
31
Cruz vs. Villasor
No.L-32213. November 26, 1973.*

AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Succession; Wills; Formal requirements; Acknowledging officer cannot serve as witness at the same
time.The notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow; to own as genuine, to assent, to admit, and before means in front
or preceding in space or ahead of. Consequently, if the third witness were the notary public himself, he
would have to avow, assent or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to acknowledge
his participation in the making of the will.
Notary public; Function of office of notary public.The function of a notary public is, among others, to
guard against any illegal or immoral arrangements. That function would be defeated if the notary public
were one of the attesting witnesses. For then he would be interested in sustaining the validity of the will
as it directly
_______________
* FIRST DIVISION.
32
32
Cruz vs. Villasor
involves himself and the validity of his own act. It would place him in an inconsistent position and the
very purpose of the acknowledgment, which is to minimize fraud would be thwarted.
PETITION for review by certiorari of a judgment of the Court of First Instance of Cebu.
Paul G. Gorrez for petitioner.
Page 25 of 145
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate
of the last will and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said deceased, opposed the allowance of the will (Exhibit E), alleging that the
will was executed through fraud, deceit, misrepresentation and undue influence; that the said
instrument was executed without the testator having been fully informed of the contents thereof,
particularly as to what properties he was disposing; and that the supposed last will and testament was
not executed in accordance with law. Notwithstanding her objection, the Court allowed the probate of
the said last will and testament. Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is whether the
supposed last will and testament of Valente Z. Cruz (Exhibit E) was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco Paares,
and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same
33
33
Cruz vs. Villasor
time the Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses in the
presence of the testator and of each other, considering that the three attesting witnesses must appear
before the notary public to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the
supposed executor of the will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three attesting witnesses even if the
notary public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227
which, insofar as pertinent, reads as follows:
It is said that there are practical reasons for upholding a will as against the purely technical reason that
one of the witnesses required by law signed as certifying to an acknowledgment of the testators
signature under oath rather than as attesting the execution of the instrument.
Page 26 of 145
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as
genuine, to assent, to admit; and before means in front or preceding in space or ahead of. (The New
Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard
Dictionary of the English Language, p. 252; Websters New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public himself, he would have to avow, assent, or
admit his having signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his participation in the
making of the will. To permit such a
34
34
Cruz vs. Villasor
situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangements. Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if the notary public
were one of the attesting or instrumental witnesses. For them he would be interested in sustaining the
validity of the will as it directly involves himself and the validity of his own act. It would place him in an
inconsistent position and the very purpose of the acknowledgment, which is to minimize fraud (Report
of the Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness
to the execution of the document he has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17
SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as a notary in a will
nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybees
Estate 160 N. W. 900; Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein,
because the notaries public and witnesses referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary
public acted not only as attesting witness but also as acknowledging witness, a situation not envisaged
by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will or file another with the office of the
Clerk of Court. [Underscoring supplied]
Page 27 of 145
To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in contravention
of the provisions of Article 805
35
35
Cruz vs. Villasor
requiring at least three credible witnesses to act as such and of Article 806 which requires that the
testator and the required number of witnesses must appear before the notary public to acknowledge the
will. The result would be, as has been said, that only two witnesses appeared before the notary public
for that purpose. In the circumstances, the law would not be duly observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate of the last
will and testament of Valente Z. Cruz (Exhibit E) is declared not valid and hereby set aside.
Cost against the appellee.
Makalintal, C. J., Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur.
Judgment reversed.
Notes.Acknowledgment of Will Before Notary Public. The requirement of Arts. 805 and 806 of the new
Civil Code that every will be acknowledged before a notary public by the testator and the witnesses, and
that the latter must avow to the certifying officer the authenticity of their signatures, etc., is sufficiently
complied with where the avowal is duly made at the time of execution of the will, and it is immaterial
that the notarys signing and sealing of the certification is done later, at his own office. Re Estate of
Ledesma, L-7179, June 30, 1955.
The requirement of Art. 806 of the new Civil Code that a will be acknowledged before a notary means
only that it must be assented to, avowed, or admitted before such officer. It does not require raising of
the right hand or any particular ceremony, if the testators signature is affixed in the notarys presence.
De Castro vs. De Castro, L-8996, October 31, 1956.
o0o Cruz vs. Villasor, 54 SCRA 31, No.L-32213 November 26, 1973
Page 28 of 145
[No. L-7179. June 30, 1955]
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner and appellee, vs. DOA
MATEA LEDESMA, oppositor and appellant.
WILLS; ACKNOWLEDGMENT; CERTIFICATION OF NOTARY THAT TESTAMENT WAS DULY ACKNOWLEDGED

IS NOT PART OF ACKNOWLEDGMENT OR TESTAMENTARY ACT.The subsequent signing and sealing by
the notary of his certification that the testament was duly acknowledged by the participants therein is
no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of
the presence of the testatrix and her witnesses can not be said to violate the rule that testaments should
be completed without interruption (Andalis vs. Pulgueras, 59 Phil., 643), or, as the Roman maxim puts it,
"uno eodem die ac tempore in eodem loco".
APPEAL from a judgment of the Court of First Instance of Iloilo. Makalintal, J.
259
VOL. 97, JUNE 30, 1955
259
Javellana vs. Ledesma
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J. B. L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the
Visayan dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon
Tabiana, Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma,
sister and nearest surviving relative of said deceased, appealed from the decision, insisting that the said
exhibits were not executed in conformity with law. The appeal was made directly to this Court because
the value of the properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and
that the dispositions were procured through undue influence. These grounds were abandoned at the
hearing in the court below, where the issue was concentrated into three specific questions: (1) whether
the testament of 1950 was executed by the testatrix in the presence of the instrumental witnesses; (2)
whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the
presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered
invalid and ineffective. These questions are the same ones presented to us for resolution.
Page 29 of 145
The contestant argues that the Court below erred in refusing credence to her witnesses Maria
Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both
testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will)
inform the deceased that he had brought
260
260
Javellana, vs. Ledesma,
the "testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested
that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had
to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the
presence of Yap alone, and returned it with the statement that no one would question it because the
property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection
of the improbable story of these witnesses. It is squarely contradicted by the concordant testimony of
the instrumental witnesses, Vicente Yap, Atty, Ramn C. Tabiana, and his wife Gloria Montinola, who
asserted under oath that the testament was executed by testatrix and witnesses in the presence of each
other, at the house of the decedent on General Hughes St, Iloilo City, on March 30, 1950. And it is highly
unlikely, and contrary to usage, that either Tabiana or Yap should have insisted that Da. Apolinaria, an
infirm lady then over 80 years old, should leave her own house in order to execute her will, when all
three witnesses could have easily repaired thither for the purpose. Moreover, the cross-examination has
revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word
"testamento'' for the first time when Yap used it; and yet they claimed ability to recall that word four
years later, despite the fact that the term meant nothing to either. It is well known that what is to be
remembered must first be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise,
Maria Paderogao was positive that Yap brought the will, and that the deceased alone signed it precisely
on March 30, 1950; but she could remember no other date, nor give satisfactory explanation why that
particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired
between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters,
261
VOL. 97, JUNE 30, 1955
261
Javellana, vs. Ledesma
Page 30 of 145
and standing at a much lower level, so that conversations in the main building could not be distinctly
heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming
that he was upstairs in a room where the servants used to eat when he heard Yap converse with his
mistress; but this correction is unavailing, since it was plainly induced by two highly leading questions
from contestant's counsel that had been previously ruled out by the trial Court. Besides, the
contradiction is hardly consonant with this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by
the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the
testament or of the codicil and the identity of the person who inserted the date therein, are not material
and are largely imaginary, since the witness Mrs. Tabiana confessed inability to remember all the details
of the transaction. Neither are we impressed by the argument that the use of some Spanish terms in the
codicil and testament (like legado, partes iguales, plena, proiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this
codicil was executed after the enactment of the new Civil Code,, and, therefore, had to be acknowledged
before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be the same ones
who attested the will of 1950) asserted that after the codicil had been signed by the testratrix and the
witnesses at San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same
occasion. On
262
262
Javellana vs. Ledesma
the other hand, Gimotea afirmed that he did not do so, but brought the codicil to his office, and signed
and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of
the witnesses, but appears rather due to a well-established phenomenon, the tendency of the mind, in
recalling past events, to substitute the usual and habitual for what differs slightly from it (II Moore on
Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the
testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805
and 806 of the new Civil Code reveals that while testator and witnesses must sign in the presence of
each other, all that is thereafter required is that "every will must be acknowledged before a notary public
by the testator and the witnesses" (Art. 806) ; i.e., that the latter should avow to the certifying officer the
authenticity of their signatures and the voluntariness of their actions in executing the testamentary
Page 31 of 145
disposition. This was done in the case before us. The subsequent signing and sealing by the notary of his
certification that the testament was duly acknowledged by the participants therein is no part of the
acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence
of the testatrix and her witnesses can not be said to violate the rule that testaments should be
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts it,
"uno eodem die ac tempore in eadem loco", and no reversible error was committed by the Court in so
holding. It is noteworthy that Article 806 of the new Civil Code does not contain words requiring that the
testator and the witnesses should acknowledge the testa-
263
VOL. 97, JUNE 30, 1955
263
Ramos Silos, et al. vs. Ramos, et al.
ment on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.
Bengzon, Acting C. J., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion,
JJ., concur.
Judgment affirmed. Javellana vs. Ledesma, 97 Phil. 258, No. L-7179 June 30, 1955
Page 32 of 145
VOL. 222, MAY 28, 1993
781
Caneda vs. Court of Appeals
G.R. No. 103554. May 28, 1993.*

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR
LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA** ABAPO
VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA
and ARTURO CANEDA, petitioners, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Wills and Succession; There are two (2) kinds of wills.In addition, the ordinary will must be
acknowledged before a notary public by the testator and the attesting witnesses, hence it is likewise
known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two persons who will read the
will and communicate its contents to him in a practicable manner. On the other hand, if the testator is
blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. The other kind of will is the holographic will, which
Article 810 defines as one that is entirely written, dated, and signed by the hand of the testator himself.
This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement
in both kinds of wills is that they should be in writing and must have been executed in a language or
dialect known to the testator.
Same; Attestation clause valid even if in a language not known to testator.However, in the case of an
ordinary or attested will, its attestation clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary disposition. Furthermore, the language used in
the attestation clause likewise need not even be known to the attesting witnesses. The last paragraph of
_______________
* SECOND DIVISION.
** The first name of this representative party petitioner is also spelled Armistica in the corresponding
allegation of the petition.
782
782
Page 33 of 145
Article 805 merely requires that, in such a case, the attestation clause shall be interpreted to said
witnesses.
Same; Purposes of attestation clause.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; whereas the subscription
of the signatures of the testator and the attesting witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is the very same instrument executed by the testator
and attested to by the witnesses.
Same; Same.Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. The attestation clause, therefore, provides
strong legal guaranties for the due execution of a will and to insure the authenticity thereof. As it
appertains only to the witnesses and not to the testator, it need be signed only by them. Where it is left
unsigned, it would result in the invalidation of the will as it would be possible and easy to add the clause
on a subsequent occasion in the absence of the testator and the witnesses.
Same; Words and Phrases; Attestation and Subscription distinguished.It will be noted that Article
805 requires that the witnesses should both attest and subscribe to the will in the presence of the
testator and of one another. Attestation and subscription differ in meaning. Attestation is the act of
the senses, while subscription is the act of the hand. The former is mental, the latter mechanical, and to
attest a will is to know that it was published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will is only to write on the same
paper the names of the witnesses, for the sole purpose of identification.
Same; Attestation clause which does not state that testament was signed by the witnesses in the
presence of one another and of the testator renders the will null and void.What is fairly apparent
upon a careful reading of the attestation clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other. The phrase and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin, obvi-
783
VOL. 222, MAY 28, 1993
783
ously refers to the testator and not the instrumental witnesses as it is immediately preceded by the
words as his Last Will and Testament. On the other hand, although the words in the presence of the
testator and in the presence of each and all of us may, at first blush, appear to likewise signify and refer
Page 34 of 145
to the witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words he has signed the same and
every page thereof, on the spaces provided for his signature and on the left hand margin. What is then
clearly lacking, in the final logical analysis, is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another. It is our considered view that the
absence of that statement required by law is a fatal defect or imperfection which must necessarily result
in the disallowance of the will that is here sought to be admitted to probate.
Same; Mere defects in form in the attestation clause do not render will void.We stress once more that
under Article 809, the defects or imperfections must only be with respect to the form of the attestation
or the language employed therein. Such defects or imperfections would not render a will invalid should it
be proved that the will was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be limited to merely
an examination of the will itself without resorting to evidence aliunde, whether oral or written.
Same; Same; Defects in attestation clause which require submission of parol evidence not mere defects
of form.In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied only by extrinsic evidence thereof, since an overall appreciation of
the contents of the will yields no basis whatsoever from which such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by indirection
what in law he cannot do directly.
Same; Same; Same.It 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
784
784
invalidation of the attestation clause and ultimat ely, of the will itself.
PETITION for review on certiorari of the decision of the Court of Appeals.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondent.
Page 35 of 145
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the issue of
whether or not the attestation clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu
before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The
said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will.1 It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and personal properties to Presentacion
Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all
of whom do not appear to be related to the testator.2
Four months, later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate
of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the
same and subsequent scheduled hearings were postponed for one reason or another. On May 29, 1980,
the testator passed away
_______________
1 Original Record, 1-3.
2 Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.
785
VOL. 222, MAY 28, 1993
785
before his petition could finally be heard by the probate court.3 On February 25, 1981, Benoni Cabrera,
one of the legatees named in the will, sought his appointment as special administrator of the testators
estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in
its order of March 6, 1981.4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second
petition, entitled In the Matter of the Intestate Estate of Mateo Caballero and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On October 18,
1982, herein petitioners had their said petition for intestate proceedings consolidated with Special
Page 36 of 145
Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and opposed thereat the
probate of the testators will and the appointment of a special administrator for his estate.5
Benoni Cabrera died on February &, 1982 hence the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding No.
3965-R to the archives since the testate proceedings for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and eventually assigned to Branch XII of the
Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings.6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors
and objected to the allowance of the testators will on the ground that on the alleged date of its
execution, the testator was already in a poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the
testator therein.7
_______________
3 Original Record, 1-3, 7, 24, 32.
4 Ibid., 32-34.
5 Ibid., 68-69, 157.
6 Ibid., 98, 116, 143, 148, 157-159.
7 TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.
786
786
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public, Atty. Filoteo
Manigos, testified that the testator executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good
health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he
and the other witnesses attested and signed the will in the presence of the testator and of each other.
The other two attesting witnesses were not presented in the probate hearing as they had died by then.8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and
testament of the late Mateo Caballero, on the ratiocination that:
Page 37 of 145
x x x The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive
testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo
Caballero executed this Last Will and Testament now marked Exhibit C on December 5, 1978. Moreover,
the fact that it was Mateo Caballero who initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit D clearly underscores the fact that this was
indeed his Last Will. At the start, counsel for the oppositors manifested that he would want the signature
of Mateo Caballero in Exhibit C examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this signature of Mateo Caballero in Exhibit C,
nothing came out of it because they abandoned the idea and instead presented Aurea Caballero and
Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit C is the Last Will and Testament of Mateo Caballero
and that it was executed in accordance with all the requisites of law.9
Undaunted by said judgment of the probate court, petitioners elevated the case to the Court of Appeals
in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and
_____________
8 TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-18.
9 Original Record, 339-340; per Judge Francis J. Militante.
787
VOL. 222, MAY 28, 1993
787
void for the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that they
also signed the will and all the pages thereof in the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision10 affirming that of the trial court, and
ruling that the attestation clause in the last will of Mateo Caballero substantially complies with Article
805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be considered as having
substantially complied with the requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is we do certify that the testament was
read by him and the testator, Mateo Caballero, has published unto us the foregoing will consisting of
THREE PAGES, including the acknowledgment, each page numbered correlatively in letters on the upper
part of each page, as his Last Will and Testament, and he has signed the same and every page thereof, on
Page 38 of 145
the spaces provided for his signature and on the left hand margin in the presence of the said testator
and in the presence of each and all of us (Italics supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to indicate the
meaning that the said will was signed by the testator and by them (the witnesses) in the presence of all
of them and of one another. Or as the language of the law would have it that the testator signed the will
in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another. If not completely or ideally perfect
in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law.11
Petitioners moved for the reconsideration of said ruling of respondent court, but the same was denied in
the latters resolution of January 14, 1992,12 hence this appeal now before us.
____________
10 Justice Cezar D. Francisco, ponente, with Justices Reynato S. Puno and Jaime D. Lantin, concurring.
11 Rollo, 9.
12 Ibid., 33.
788
788
Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law
and the settled jurisprudence on the matter and are now questioning once more, on the same ground as
that raised before respondent court, the validity of the attestation clause in the last will of Mateo
Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter explain, after some
prefatory observations which we feel should be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death.13 Under the Civil Code, there are two kinds of wills which a testator may execute.14 The first kind
is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code.
Article 805 requires that:
Page 39 of 145
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testators 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.
In addition, the ordinary will must be acknowledged before a
_____________
13 Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.
14 Report of the Code Commission, 103-105.
789
VOL. 222, MAY 28, 1993
789
notary public by the testator and the attesting witnesses,15 hence it is likewise known as a notarial will.
Where the testator is deaf or a deaf-mute, Article 807 requires that he must personally read the will, if
able to do so. Otherwise, he should designate two persons who will read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before
whom it is acknowledged.16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the hand of the testator himself. This kind of will, unlike the ordinary type, requires
no attestation by witnesses. A common requirement in both kinds of wills is that they should be in
writing and must have been executed in a language or dialect known to the testator.17
However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Page 40 of 145
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses.18 The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that
the instrument has been executed before them and to the manner of the execution of the same.19 It is a
separate memorandum or record of the facts surrounding the conduct of execution and once signed by
the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by
law has been observed.20 It is made for the purpose of preserving in a permanent form a record
______________
15 Art. 806, Civil Code.
16 Art. 808, id.
17 Art. 804, id.
18 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).
19 Testate Estate of Paula Toray, 87 Phil. 139 (1950).
20 Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).
790
790
of the fact that attended the execution of a particular will, so that in case of failure of the memory of the
attesting witnesses, or other casualty, such facts may still be proved.21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the
invalidity of the will,22 should state (1) the number of pages used upon which the will is written; (2) that
the testator signed, or expressly caused another to sign, the will and every page thereof in the presence
of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will is written
is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages;23 whereas the subscription of the signatures of the testator and the
Page 41 of 145
attesting witnesses is made for the purpose of authentication and identification, and thus indicates that
the will is the very same instrument executed by the testator and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the
will as embodied in the attestation clause.25 The attestation clause, therefore, provides strong legal
guaranties for the due execution of a will and to insure the authenticity thereof.26 As it appertains only
to the witnesses and not to the testator, it need be signed only by them.27 Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and the
_______________
21 Leynez vs. Leynez, 68 Phil. 745 (1939).
22 In re Estate of Neumark, 46 Phil. 841 (1923).
23 In The Matter of the Estate of Sanguinsin, 41 Phil. 875 (1920); In re Will of Andrada, 42 Phil. 180
(1921).
24 Testate Estate of Paula Toray, supra.
25 Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).
26 Echevarria vs. Sarmiento, 66 Phil. 611 (1938).
27 Abangan vs. Abangan, 40 Phil. 476 (1919).
791
VOL. 222, MAY 28, 1993
791
witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the formalities to
be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the law on wills in this Project
consists in the liberalization of the manner of their execution with the end in view of giving the testator
more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator.
Page 42 of 145
This objective is in accord with the modern tendency with respect to the formalities in the execution of
wills. x x x29
2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of three
sheets all of which have been numbered correlatively, with the left margin of each page thereof bearing
the respective signatures of the testator and the three attesting witnesses. The part of the will
containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is signed at the
foot thereof by the testator. The attestation clause in question, on the other hand, is recited in the
English language and is likewise signed at the end thereof by the three attesting witnesses thereto.30
Since it is the proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the
Opposite of our respective names, we do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO, has published unto us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page numbered correlatively in letters on the upper part of each
page, as his Last Will and Testament and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the presence of the said testator and in the
presence of each and all of us.
______________
28 Cagro vs. Cagro, 92 Phil. 1032 (1953).
29 Report of the Code Commission, 103.
30 Exhibits C to C-18; Folder of Exhibits in Special Proceeding No. 3899-R, 7-9; Original Record, 4-6.
792
792
It will be noted that Article 805 requires that the witnesses should both attest and subscribe to the will
in the presence of the testator and of one another. Attestation and subscription differ in meaning.
Attestation is the act of the senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper published as a will is only
to write on the same paper the names of the witnesses, for the sole purpose of identification.31
In Taboada vs. Rosal,32 we clarified that attestation consists in witnessing the testators 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
Page 43 of 145
paper as the will which was executed by the testator. As it involves a mental act, there would be no
means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is substantially expressed in the
attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages
in their presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not expressly
state therein the circumstance that said witnesses subscribed their respective
_____________
31 Hills vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A., 1918B 687.
32 118 SCRA 195 (1982).
793
VOL. 222, MAY 28, 1993
793
signatures to the will in the presence of the testator and of each other.
The phrase and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words as his Last Will and Testament. On the other
hand, although the words in the presence of the testator and in the presence of each and all of us may,
at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as
referring only to the testator signing in the presence of the witnesses since said phrase immediately
follows the words he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin. What is then clearly lacking, in the final logical analysis, is the
statement that the witnesses signed the will and every page thereof in the presence of the testator and
of one another.
It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation
Page 44 of 145
clause obviously cannot be characterized as merely involving the form of the will or the language used
therein which would warrant the application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render the
will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all
the requirements of article 805 (Italics supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witnesses affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only establishes
the fact that it was indeed signed, but
794
794
it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and
of each other. The execution of a will is supposed to be one act so that where the testator and the
witnesses sign on various days or occasions and in various combinations, the will cannot be stamped
with the imprimatur of effectivity.33
We believe that the following comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein
he urged caution in the application of the substantial compliance rule therein, is correct and should be
applied in the case under consideration, as well as to future cases with similar questions:
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. (Emphasis ours.)
3. We stress once more that under Article 809, the defects or imperfections must only be with respect
to the form of the attestation or the language employed therein. Such defects or imperfections would
not render a will invalid should it be proved that the will was really executed and attested in compliance
with Article 805. In this regard, however, the manner of proving the due execution and attestation has
been held to be limited to merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
Page 45 of 145
The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the
_____________
33 Andalis vs. Pulgueras, 59 Phil. 643 (1934).
34 Lawyers Journal, November 30, 1950, 566, cited in Tolentino, op. cit., supra, note 17 at 111-112.
795
VOL. 222, MAY 28, 1993
795
testator and of each other.35 In such a situation, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by Article 805 to be specifically
stated in the attestation clause of a will. That is precisely the defect complained of in the present case
since there is no plausible way by which we can read into the questioned attestation clause any
statement, or an implication thereof, that the attesting witnesses did actually bear witness to the signing
by the testator of the will and all its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be invoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied by
the text of the will or a consideration of matters apparent therefrom which would provide the data not
expressed in the attestation clause or from which it may necessarily be gleaned or clearly inferred that
the acts not stated in the omitted textual requirements were actually complied with in the execution of
the will. In other words, the defects must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied only by extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from which such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the compliance
with such requirements by the instrumental witnesses, oblivious of the fact that he is thereby resorting
to extrinsic evidence to prove the same and would accordingly be doing by indirection what in law he
cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving issues centering on compli-
______________
Page 46 of 145
35 Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50 Phil. 30 (1927); Quinto vs. Morata,
54 Phil. 481 (1930); Rodriguez vs. Alcala, 55 Phil. 150 (1930); Testate Estate of Paula Toray, supra; Gil vs.
Marciano, 88 Phil. 261 (1951).
796
796
ance with the legal formalities required in the execution of wills. The formal requirements were at that
time embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said decision was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act No. 190 and
the amendment thereto were practically reproduced and adopted in the Civil Code.
One view advanced the liberal or substantial compliance rule. This was first laid down in the case of
Abangan vs. Abangan,36 where it was held that the object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and
to guarantee their truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. Nonetheless, it was also emphasized that one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will, hence when an interpretation already given assures such ends, any other interpretation
whatsoever that adds nothing but demands more requisites entirely unnecessary, useless and fnistrative
of the testators last will, must be disregarded. The subsequent cases of Avera vs. Garcia,37 Aldaba vs.
Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et al.,41 and Nayve vs.
Mojal, et al.42 all adhered to this position. The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution of wills are mandatory in nature and
are to be strictly construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,43 In re Will of Andrada,44 Uy Coque vs.
_______________
36 40 Phil. 476 (1919).
37 42 Phil. 145 (1921).
38 43 Phil. 378 (1922).
39 43 Phil. 494 (1922).
40 45 Phil. 216 (1923).
41 46 Phil. 922 (1924).
Page 47 of 145
42 47 Phil. 152 (1924).
43 41 Phil. 875 (1920).
44 42 Phil. 180 (1921).
797
VOL. 222, MAY 28, 1993
797
Sioca,45 In re Estate of Neumark,46 and Sano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of Gumban, the attestation clause had failed to state
that the witnesses signed the will and each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error above-mentioned, appellants rely on a series
of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875),
continuing with In re Will of Andrada ([1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca ([1922], 43 Phil.,
405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48
Phil., 506), Appellee counters with the citation of a series of cases beginning with Abangan vs. Abangan
([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil. 378), and Fernandez vs.
Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil.
152). In its last analysis, our task is to contrast and, if possible, conciliate, the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite
that the witnesses signed the will and each and every page thereof on the left margin in the presence of
the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was
cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision
in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must state the fact
that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the
testator and the witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to state such evident
facts does not invalidate the will.
_______________
45 43 Phil. 405 (1922).
Page 48 of 145
46 46 Phil. 841 (1923).
47 48 Phil. 506 (1925).
48 50 Phil. 30 (1927).
798
798
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in
doctrine. Yet here, unless aided by casuistry of the extreme type, it would be impossible to reconcile the
Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we
rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first
place, the Mojal decision was concurred in by only four members of the court, less than a majority, with
two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court,
a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December 1925; the Quintana
decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed
more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the case is here found
in section 61 of the Code of Civil Procedure, as amended by Act No. 2645, and in section 634 of the same
Code, as unamended. It is in part provided in section 61, as amended that No will * * * shall be valid * *
* unless * * *. It is further provided in the same section that The attestation shall state the number of
sheets or pages used, upon which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other. Codal section 634 provides that The will shall be disallowed
in either of the following cases: 1. If not executed and attested as in this Act provided. The law not alone
carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to
enforce legislative intention. It is not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the
original text).
Page 49 of 145
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of
Quinto vs. Morata,49 Rodriguez vs. Alcala,50
_______________
49 54 Phil. 481(1930).
50 55 Phil. 150 (1930).
799
VOL. 222, MAY 28, 1993
799
Echevarria vs. Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling as restated in
Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De Gorostiza,55
Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. Leynez,59 Martir vs.
Martir,60 Alcala vs. De Villa,61 Sabado vs. Fernandez,62 Mendoza vs. Pilapil,63 and Lopez vs. Liboro,64
veered away from the strict interpretation rule and established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable inclination
towards a liberal construction, recommended the codification of the substantial compliance rule, as it
believed this rule to be in accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the Civil Code, with this
explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance with the
formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No. 2645. The
Supreme Court of the Philippines had previously upheld the strict compliance with the legal formalities
and had even said that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarily restrained the freedom
of the testator in disposing of his property.
However, in recent years the Supreme Court changed its atti-
_______________
51 66 Phil. 611 (1933).
52 87 Phil. 139 (1950).
Page 50 of 145
53 53 Phil. 104 (1929).
54 56 Phil. 282 (1931).
55 57 Phil. 437 (1932).
56 59 Phil. 653 (1934).
57 68 Phil. 126 (1939).
58 68 Phil. 128 (1939).
59 68 Phil. 745 (1939).
60 70 Phil. 89 (1940).
61 71 Phil. 561 (1940).
62 72 Phil. 531 (1941).
63 72 Phil. 546 (1941).
64 81 Phil. 429 (1948).
800
800
tude and has become more liberal in the interpretation of the formalities in the execution of wills. This
liberal view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala
vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to the original
provisions of Section 618 of the Code of Civil Procedure before its amendment by Act No. 2645 in the
year 1916. To turn this attitude into a legislative declaration and to attain the main objective of the
proposed Code in the liberalization of the manner of executing wills, article 829 of the Project is
recommended, which reads:
ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall not render the
Page 51 of 145
will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all
the requirements of article 829. 65
The so-called liberal rule, the Court said in Gil vs. Murciano,66 does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with, precision. They do not allow evidence aliunde to fill a void in any part of
the document or supply missing details that should appear in the will itself. They only permit a probe
into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results.
It may thus be stated that the rule, as it now stands, is that 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.67
______________
65 Report of the Code Commission, 104-105.
66 88 Phil. 260, 281 (1951).
67 Tolentino, op. cit., supra, note 17 at 111.
801
VOL. 222, MAY 31, 1993
801
People vs. Jotoy
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby
REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and
to REVIVE Special Proceeding No. 3965-R (In the Matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Nocon, JJ., concur.
Petition granted. Decision reversed and set aside.
Page 52 of 145
Notes.Persons convicted of falsification of a document, perjury or false testimony are disqualified from
being witnesses to a will (People vs. Umali, 193 SCRA 493).
Failure to attach will to petition not critical where it was adduced in evidence (Heirs of Fran vs. Salas, 210
SCRA 303). Caneda vs. Court of Appeals, 222 SCRA 781, G.R. No. 103554 May 28, 1993
Page 53 of 145
VOL. 226, SEPTEMBER 14, 1993
347
Alvarado vs. Gaviola, Jr.
G.R. No. 74695. September 14, 1993.*

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR
ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO, respondents.
Civil Law; Wills; Article 808 applies not only to blind testators but also, to those who, for one reason or
another, are incapable of reading their wills.Clear from the foregoing is that Art. 808 applies not only
to blind testators but also to those who, for one reason or another, are incapable of reading the(ir)
will(s). Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his poor, defective, or blurred vision, there can be no
other course for us but to conclude that Brigido Alvarado comes within the scope of the term blind as
it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or
not the lawyer who drafted the will and codicil did so conformably with his instructions.
Same; Same; Same; The purpose of reading the will twice is to make known to the incapacitated testator
the contents of the document before signing and to give him an opportunity to object if anything is
contrary to his instructions.Article 808 requires that in case of testators like Brigido Alvarado, the will
shall be read twice; once, by one of
_______________
* FIRST DIVISION.
348
348
the instrumental witnesses and, again, by the notary public before whom the will was acknowledged.
The purpose is to make known to the incapacitated testator the contents of the document before signing
and to give him an opportunity to object if anything is contrary to his instructions.
Same; Same; Same; Same; Court held in a number of occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied.This Court has held in a number of occasions that
substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being
Page 54 of 145
that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds
of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary
privilege.
Same; Same; Same; Same; Although there should be strict compliance with the substantial requirements
of the law in order to insure the authenticity of the will, the formal imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account, may only defeat the
testators will.The spirit behind the law was served though the letter was not. Although there should
be strict compliance with the substantial requirements of the law in order to insure the authenticity of
the will, the formal imperfections should be brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the testators will.
PETITION for review on certiorari of the decision of the Court of Appeals.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 19861 of the First Civil Cases Division of the then
Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 19832 of
the Regional Trial Court of Sta. Cruz,
_______________
1 Rollo, pp. 29-37.
2 Penned by Judge Maximiano C. Asuncion, Original Records, pp.
349
349
Laguna, admitting to probate the last will and testament3 with codicil4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled Huling Habilin
wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed
holographic will at the time awaiting probate before Branch 4 of the Regional Trial Court of Sta. Cruz,
Laguna.
Page 55 of 145
As testified to by the three instrumental witnesses, the notary public and by private respondent who
were present at the execution, the testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eightpaged document, read the same aloud in the presence
of the testator, the three instrumental witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished them.
Meanwhile, Brigidos holographic will was subsequently admitted to probate on 9 December 1977. On
the 29th day of the same month, a codicil entitled Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado was executed changing
some dispositions in the notarial will to generate cash for the testators eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case
of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was
private respondent who read it aloud in his presence and in the presence of the three instrumental
witnesses (same as those of the notarial will) and the notary public who followed the reading using their
own copies.
A petition for the probate of the notarial will and codicil was filed upon the testators death on 3 January
1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of
Siniloan, Laguna.5 Petitioner, in turn, 214-224.
_______________
3 Exhibit D, Folder of Exhibits, pp. 65-72.
4 Exhibit E, Id., pp. 73-77.
5 Subsequently transferred to the Regional Trial Court, Br. 26, Sta. Cruz, Laguna.
350
350
filed an Opposition on the following grounds: that the will sought to be probated was not executed and
attested as required by law; that the testator was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age; that the will was executed under duress, or
influence of fear or threats; that it was procured by undue and improper pressure and influence on the
part of the beneficiary who stands to get the lions share of the testators estate; and lastly, that the
signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The
Page 56 of 145
main thrust of the appeal was that the deceased was blind within the meaning of the law at the time his
Huling Habilin and the codicil attached thereto were executed; that since the reading required by Art.
808 of the Civil Code was admittedly not complied with, probate of the deceaseds last will and codicil
should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings:
that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his
blindness, the reading requirement of Art. 808 was substantially complied with when both documents
were read aloud to the testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter, there was substantial compliance since
its purpose of making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of Art. 808 at the
time his Huling Habilin and its codicil were executed? If so, was the doublereading requirement of said
article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind
at the time the will and codicil were executed. However, his vision on both eyes was only of counting
fingers at three (3) feet by reason of the glaucoma which he had been suffering from for several years
and even prior to his first consultation with an eye specialist on 14 December 1977.
351
351
The point of dispute is whether the foregoing circumstances would qualify Brigido as a blind testator
under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and codicil were
executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his
stand, petitioner presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda,
Director of the Institute of Opthalmology (Philippine Eye Research Institute),6 the contents of which
were interpreted in laymans terms by Dr. Ruperto Roasa, whose expertise was admitted by private
respondent.7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he
could no longer read either printed or handwritten matters as of 14 December 1977, the day of his first
consultation.8
Page 57 of 145
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could
still read on the day the will and the codicil were executed but chose not to do so because of poor
eyesight.9 Since the testator was still capable of reading at that time, the court a quo concluded that
Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondents staunch contention that the testator was still capable of reading at the time
his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido
did not do so because of his poor,10 defective,11 or blurred12 vision making it necessary for
private
_______________
6 Folder of Exhibits p. 78.
7 TSN, 3 August 1982, p. 6.
8 Id., pp. 7-8.
9 Rollo, p. 36.
10 TSN, 18 June 1981, p. 3; 20 August 1981, p. 4; 16 September 1981, p. 5; 1 October 1981, p. 4.
11 TSN, 18 June 1981, p. 3; 1 October 1981, p. 9.
12 TSN, 20 August 1981, p. 4; 5 November 1981, pp. 15-16; 14
352
352
respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez13 provides an insight into the scope of the term
blindness as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that
he may be able to object if they are not in accordance with his wishes x x x x
Page 58 of 145
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are incapable of reading the(ir) will(s). Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the separate occasions of their execution due to his
poor, defective, or blurred vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term blind as it is used in Art. 808. Unless the contents were
read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil
did so conformably with his instructions. Hence, to consider his will as validly executed and entitled to
probate, it is essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by
one of the instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if anything is contrary to his
instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental
witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged
codicil who read the same aloud to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial January 1982, p. 16.
_______________
13 No. L-26884, 30 April 1970, 32 SCRA 490, 502-503.
353
353
compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance is a strict compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental witness read the contents of the will and
codicil to Brigido, probate of the latters will and codicil should have been disallowed.
We sustain private respondents stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution
of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to
be so rigid and inflexible as to destroy the testamentary privilege.14
In the case at bar, private respondent read the testators will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
Page 59 of 145
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so
allege, that the contents of the will and codicil were not sufficiently made known and communicated to
the testator. On the contrary, with respect to the Huling Habilin, the day of the execution was not the
first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to
the testators residence precisely for the purpose of securing his conformity to the draft.15
Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977.
The notary public and the
_______________
14 Icasiano v. Icasiano, No. L-18979, 30 June 1964, 11 SCRA 422, 429-430; Abangan v. Abangan, 40 Phil.
476, 479 (1919); Rey v. Cartagena, 56 Phil. 282, 284-285 (1931); Rodriguez v. Yap, 68 Phil. 126, 128
(1939); Leynez v. Leynez, 68 Phil. 745, 750 (1939); Roxas v. De Jesus, Jr., No. L-38338, 28 January 1985,
134 SCRA 245, 249.
15 TSN, 18 June 1981, p. 4.
354
354
three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de
la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and
the testators physician) asked the testator whether the contents of the documents were of his own free
will. Brigido answered in the affirmative.16 With four persons following the reading word for word with
their own copies, it can be safely concluded that the testator was reasonably assured that what was read
to him (those which he affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we consider the fact that the
three instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente)
and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its purpose and which, when
taken into account, may only defeat the testators will.17
Page 60 of 145
As a final word to convince petitioner of the propriety of the trial courts Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan,18 to
wit:
The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testators will, must be
_______________
16 TSN, 16 September 1981, pp. 4-5; 14 January 1982, pp. 6, 12.
17 Rodriguez v. Yap, 68 Phil. 126, 128 (1939).
18 40 Phil. 477, 479 (1919).
355
355
disregarded (italics supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his Huling Habilin
and the codicil attached thereto. We are unwilling to cast these aside for the mere reason that a legal
requirement intended for his protection was not followed strictly when such compliance had been
rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated
testator the contents of the draft of his will, had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11
April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this
decision is immediately executory. Costs against petitioner.
SO ORDERED.
Cruz (Chairman), Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.
Petition denied. Appealed decision affirmed.
Page 61 of 145
Note.When the authenticity of the will is not being questioned, there is no necessity of presenting the
three witnesses required under Article 811 of the Civil Code (Rivera vs. Intermediate Appellate Court,
182 SCRA 322).
o0o Alvarado vs. Gaviola, Jr., 226 SCRA 347, G.R. No. 74695 September 14, 1993
Page 62 of 145
VOL. 32, APRIL 30, 1970
489
Garcia vs. Vasquez
No. L-26615. April 30, 1970.

REV. FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR.JAIME
ROSARIO, petitioners, vs. HON.CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, and CONSUELO GONZALES VDA. DE PRECILLA, respondents.
490
490
Garcia vs. Vasquez
No. L-26884. April 30, 1970.

REV.FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR.JAIME
ROSARIO, petitioners, vs. HON.CONRADO ML VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, REGISTER OF DEEDS OF MANILA,and CONSUELO GONZALES VDA.DE PRECILLA, respondents.
No. L-27200. April 30, 1970.

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA.DE PRECILLA,
petitioner-administratrix, vs. SEVERINA NARCISO,ROSA NARCISO, JOSEFINA NARCISO,VICENTE
MAURICIO,DELFIN MAURICIO,REMEDIOS NARCISO,ENCARNACION,NARCISO,MARIA NARCISO,EDUARDO
NARCISO,FR.LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA,MARIA NATIVIDAD DE JESUS, DR.JAIME DEL
ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, oppositors-
appellants.
Succession; Wills; Execution of wills; Where testator is blind, will must be read to him twice; Reasons.
Where the testator is blind, the will must be read to him twice as required by Article 808 of the Civil
Code. The reason for this is to make the provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes. Failure to comply with this requirement makes the
will invalid.
Settlement of estate of deceased persons; Administrators; Where administrator holds adverse interest to
estate, he may be removed.Where the administrator hold interest adverse to the estate or by his
conduct, demonstrated his unfitness or unsuitableness to discharge the trust, he should be removed
from the administration from the estate.
Civil actions; Lis pendens; Not applicable where action does not affect real property or title thereto.
Notice of the pendency of an action may be recorded in the office of the register of deeds of the
Page 63 of 145
province in which the property is situated if the action affects the title or the right of possession of real
property. It does not apply where the case is concerned merely with the correctness of the denial by the
probate court of the motion for the removal of the special administratrix of the estate which does not
involve the title to or possession of real properties of the estate.
491
VOL. 32, APRIL 30, 1970
491
Garcia vs. Vasquez
APPEAL from an order of the Court of First Instance of Manila. Vasquez, J.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S. Gonzales
Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.
Leandro Sevilla & Ramon C. Aquino for petitioner-administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, et al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, et al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del
Rosario-Sarmiento, et al.
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No.
62618) admitting to probate the alleged last will and testament of the late Gliceria Avelino del Rosario,
dated 29 December 1960. G.R. Nos. L-26615 and L-26864 are separate petitions for mandamus filed by
certain alleged heirs of said decedent seeking (1) to compel the probate court to remove Consuelo S.
Page 64 of 145
Gonzales-Precilla as special administratrix of the estate, for conflict of interest, and to appoint a new one
in her stead; and (2) to order the Register of Deeds of Manila to annotate notice of lis pen-
492
492
Garcia vs. Vasquez
dens in TCT Nos. 81735, 81736 and 81737, registered in the name of Alfonso Precilla, married to
Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of the deceased Gliceria A.
del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no
descendents, ascendants, brother or sister. At the time of her death, she was said to be 90 years old
more or less, and possessed of an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the
Court of First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del
Rosario, executed on 20 December 1960, and for her appointment as special administratrix of the latters
estate, said to be valued at about P100,000.00, pending the appointment of a regular administrator
thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a
legatee named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and
children, relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta
Natividad de Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed Narciso, and Vicente and
Delfin, surnamed Mauricio,the latter five groups of persons all claiming to be relatives of Dona Gliceria
within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960
was not intended by the deceased to be her true will; that the signatures of the deceased appearing in
the will was procured through undue and improper pressure and influence on the part of the
beneficiaries and/or other persons; that
493
VOL. 32, APRIL 30, 1970
493
Page 65 of 145
Garcia vs. Vasquez
the testatrix did not know the object of her bounty; that the instrument itself reveals irregularities in its
execution, and that the formalities required by law for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the
group of Dr. Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special administratrix, on the ground that the latter possesses interest
adverse to the estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioners prayer and appointed her special administratrix of the estate upon a bond for
P30,000.00. The order was premised on the fact the petitioner was managing the properties belonging
to the estate even during the lifetime of the deceased, and to appoint another person as administrator
or co-administrator at that stage of the proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate court an urgent motion to
require the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased
after 2 September 1965. The court denied this motion on 22 October 1965 for being premature, it being
unaware that such deposit in the name of the deceased existed.1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de
Praga, Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the
special administrartrix. It was their claim that the special administratrix and her deceased husband,
Alfonso Precilla,2 had caused Gliceria A. del Rosario to execute a simulated and fraudulent deed of
absolute sale dated 10 January 1961 allegedly conveying unto said spouses for the paltry sum of P30,-
________________
1 At that time, no inventory of the properties belonging to the estate has yet been submitted by the
special administratrix.
2 Precilla died on 17 July 1965 or before the death of Gliceria Rosario.
494
494
Garcia vs. Vasquez
000.00 ownership of 3 parcels of land and the improvements thereon located on Quiapo and San
Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the
duty of the administrator to protect and conserve the properties of the estate, and it may become
necessary that an action for the annulment of the deed of sale and for recovery of the aforementioned
parcels of land be filed against the special administratrix, as wife and heir of Alfonso Precilla, the removal
of the said administratrix was imperative.
Page 66 of 145
On 17 December 1965, the same oppositors prayed the court for an order, directing the Special
Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was
alleged that on 22 October 1965, or after her appointment, petitioner Consuelo Gonzales Vda. de
Precilla, in her capacity as special administratrix of the estate of the deceased Gliceria A. del Rosario,
filed with Branch IV of the Court of First Instance of Manila a motion for the issuance of new copies of
the owners duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly
needed by her in the preparation of the inventory of the properties constituting the estate. The
motion having been granted, new copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November
1965. On 8 December 1965, according to the oppositors, the same special administratrix presented to
the Register of Deeds the deed of sale involving properties covered by TCT Nos. 66201, 66202 and 66204
supposedly executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla, and, in
consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736 and
81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del
Rosario (Exhibit D). In declaring the due execution of the will, the probate court took note that no
evidence had been presented
495
VOL. 32, APRIL 30, 1970
495
Garcia vs. Vasquez
to establish that the testatrix was not of sound mind when the will was executed; that the fact that she
had prepared an earlier will did not prevent her from executing another one thereafter; that the fact that
the 1956 will consisted of 12 pages whereas the 1960 testament was contained in one page does not
render the latter invalid; that the erasures and alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the instrumental witnesses which were noted by
the oppositors are even indicative of their truthfulness. The probate court, also considering that
petitioner had already shown capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and interested therein, appointed said
petitioner regular administratrix with a bond for P50,000.00. From this order all the oppositors appealed,
the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion of 14 December 1965
for the removal of the then special administratrix, as follows:
It would seem that the main purpose of the motion to remove the special administratrix and to appoint
another one in her stead, is in order that an action may be filed against the special administratrix for the
annulment of the deed of sale executed by the decedent on January 10, 1961. Uiider existing
documents, the properties sold pursuant to the said deed of absolute sale no longer forms part of the
Page 67 of 145
estate. The alleged conflict of interest is accordingly not between different claimants of the same estate.
If it is desired by the movants that an action be filed by them to annul the aforesaid deed of absolute
sale, it is not necessary that the special administratrix be removed and that another one be appointed to
file such action. Such a course of action would only produce confusion and difficulties in the settlement
of the estate. The movants may file the aforesaid proceedings, preferably in an independent action, to
secure the nullity of the deed of absolute sale even without leave of this court:
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the
decedent, the same was also denied, for the reason that if the mo-
496
496
Garcia vs. Vasquez
vants were referring to the old titles, they could no longer be produced, and if they meant the new
duplicate copies thereof that were issued at the instance of the special administratrix, there would be no
necessity therefor, because they were already cancelled and other certificates were issued in the name
of Alfonso Precilla. This order precipitated the oppositors filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs. Hon. Judge Conrado M. Vasquez, et al.), which was
given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the
Register of Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736,
and 81737 the name of Alfonso Precilla. And when said official refused to do so, they applied to the
probate court (in Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate a lis
pendens notice in the aforementioned titles contending that the matter of removal and appointment of
the administratrix, involving TCT Nos. 81735, 81736, and 81737, was already before the Supreme Court.
Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action, this time
againts the probate court and the Register of Deeds. The case was decided and given due course in this
Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order allowing the
probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario,
during her lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish,
a language that she knew and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin
Marquez, and acknowledged before notary public Jose Ayala; and another dated 29 December 1960,
consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente Rosales, Francis-
497
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VOL. 32, APRIL 30, 1970
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Garcia vs. Vasquez
co Decena, and Francisco Lopez and acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and
Rosales uniformly declared that they were individually requested by Alfonso Precilla (the late husband of
petitioner special administratrix) to witness the execution of the last will of Doa Gliceria A. del Rosario;
that they arrived at the house of the old lady at No. 2074 Azcarraga, Manila one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked;3 that the will, which was already prepared,
was first read silently by the testatrix herself before she signed it;4 that the three witnesses thereafter
signed the will in the presence of the testatrix and the notary public and of one another. There is also
testimony that after the testatrix and the witnesses to the will acknowledged the instrument to be their
voluntary act and deed, the notary public asked for their respective residence certificates which were
handed to him by Alfonso Precilla, clipped together;5 that after comparing them with the numbers
already written on the will, the notary public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal thereto,6 They also testified that on that occasion
no pressure or influence has been exerted by any person upon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are
evident from the records. The will appeared to have been prepared by one who is not conversant with
the spelling of Tagalog words, and it has been shown that Alfonso Pre-
_______________
3 Page 24, hearing of 2 Dec. 1965; page 75, hearing of 3 Dec. 1965; page 61, hearing of 22 Dec. 1965.
4 Pages 17, 31, hearing of 2 Dec. 1965; page 110, 3 Dec. 1965; page 61, hearing of 22 Dec. 1965.
5 Page 15, hearing of 22 Dec. 1965.
6 Page 16, idem.
498
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Garcia vs. Vasquez
Page 69 of 145
cilia is a Cebuano who speaks Tagalog with a Visayan accent.7 The witnesses to the will, two of whom
are fellow Visayans,8 admitted their relationship or closeness to Precilla.9 It was Precilla who instructed
them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important
document,10 and who took their residence certificates from them a few days before the will was
signed,11 Precilla had met the notary public and witnesses Rosales and Lopez at the door of the
residence of the old woman; he ushered them to the room at the second floor where the signing of the
document took place;12 then he fetched witness Decena from the latters haberdashery shop a few
doors away and brought him to the house of the testatrix.13 And when the will was actually executed
Precilla was present.14
The oppositors-appellants in the present case, however, challenging the correctness of the probate
courts ruling, maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions of the will, contrary to the testimonies of witnesses
Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said
________________
7 Page 58, t.s.n., hearing of 2 December 1965.
8 Pages 85, 86, t.s,n., hearing of 3 December 1965; pages 47, 48, t.s.n., hearing of 22 December 1965.
9 Pages 10, 37, t.s.n., hearing of 2 December 1965; page 83, t.s.n., hearing of 3 December 1965; pages
37, 38, t.s.n., hearing of 22 December 1965.
10 Page 44, t.s.n., hearing of 3 December 1965; pages 45-46, t.s.n., 22 December 1965.
11 Pages 69-70, t.s.n., hearing of 3 December 1965; page 47, t.s.n., hearing of 22 December 1965; page
30, t.s.n., 2 December, 1965.
12 Page 47, t.s.n., 3 December 1965: pages 54, 55. t.s.n., hearing of 22 December 1965; pages 35, 36,
t.s.n., 21 January 1966.
13 Pages 14, 15, 2 December 1965.
14 Page 14, t.s.n., 1 December 1965; page 13, t.s.n., 3 December 1965; page 27, t.s.n., 22 December
1965; page 9, t.s.n., 21 January 1966.
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Garcia vs. Vasquez
Page 70 of 145
ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that
when Doa Gliceria del Rosario saw him for consultation on 11 March 1960 he found her left eye to have
cataract (opaque lens),15 and that it was above normal in pressure, denoting a possible glaucoma, a
disease that leads to blindness.16 As to the conditions of her right eye, Dr. Tamesis declared:
But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from
which you could inform the court as to the condition of the vision of the patient as to the right eye?
Under date of August 30, 1960, is the record of refraction, that is setting of glass by myself which showed
that the right eye with my prescription of glasses had a vision of 20 over 60 (20/60) and for the left eye
with her correction 20 over 300 (20/300).
In laymans language. Doctor, what is the significance of that notation that the right had a degree of 20
over 60 (20/60)?
It meant that that eye at least would be able to recognize objects or persons at a minimum distance of
twenty feet.
But would that grade enable the patient to read print?
Apparently that is only a record for distance vision, for distance sight, not for near. (pages 20-21, t.s.n.,
hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated on the left eye of the decedent at the Lourdes
Hospital on 8 August 1960; as of 23 August 1960, in spite of the glasses her vision was only counting
fingers,17 at five feet. The cross-examination of the doctor further elicited the following responses:
Page 71 of 145
After she was discharged from the hospital you prescribed lenses for her, or glasses?
After her discharge from the hospital, she was coming to
_______________
15 Page 13, t.s.n., hearing of 23 March 1966.
16 Page 17, t.s.n., hearing of 23 March 1966.
17 Counting fingers is a standard procedure adopted to determine the extent of vision of a patient
with very poor vision. (page 25, t.s.n., hearing of 23 March 1966)
500
500
Garcia vs. Vasquez
my clinic for further examination and then sometime later glasses were prescribed.
xxx xxx xxx xxx
And the glasses prescribed by you enabled her to read, Doctor?
As far as my record is concerned, with the glasses for the left eye which I prescribedthe eye which I
operatedshe could see only forms but not read. That is on the left eye.
Page 72 of 145
Q
How about the right eye?
The same, although the vision on the right eye is even better than the left eye. (pages 34, 35, t.s.n.,
hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying
that Gliceria del Rosario was provided with aphakic lenses and had been under medical supervision up
to 1963 with apparently good vision, the doctor had this to say:
When you said that she had apparently good vision you mean that she was able to read?
No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report
was made on pure recollections and I recall she was using her glasses although I recall also that we have
to give her medicines to improve her vision, some medicines to improve her identification some more.
xxx xxx xxx xxx
What about the vision in the right eye, was that corrected by the glasses?
Yes, with the new prescription which I issued on 30 August 1960. It is in the clinical record.
The vision in the right eye was corrected?
Page 73 of 145
A
Yes. That is the vision for distant objects. (pages 38, 39, 40, ts.n., hearing of 23 March 1966).
That is the vision for distant objects. (pages 38, 39, 40, ts.n., hearing of 23 March 1966). The foregoing
testimony of the ophthalmologist who treated the deceased and, therefore, has first hand knowledge of
the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye and her being fitted with
aphakic lens (used by cataract pa-
501
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Garcia vs. Vasquez
tients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the
conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no
evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and
could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth
noting that the instrumental witnesses stated that she read the instrument silently (t.s.n., pages 164-
165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit
D, acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, so much so that the words had to
be written very close to the top, bottom and two sides of the paper, leaving no margin whatsoever; the
word and had to be written by the symbol &, apparently to save on space. Plainly, the testament was
not prepared with any regard for the defective vision of Doa Gliceria. Further, typographical errors like
HULINH for HULING (last), Alfonsa for Alfonso, MERCRDRS for MERCEDES, instrumental for
Instrumental, and acknowledged for acknowledge, remained unconnected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of ones worldly possessions should be embodied in an
informal and untidily written instrument; or that the glaring spelling errors should have escaped her
notice if she had actually retained the ability to read the purported will and had done so. The record is
thus convincing that the supposed testatrix could not have physically read or understood the alleged
testament, Exhibit D, and that its admission to probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to
kitchen tasks shortly prior to the alleged execution of the testa-
502
Page 74 of 145
502
Garcia vs. Vasquez
ment Exhibit D, as appears from the photographs, Exhibits E to E-l, in no way proves fchat she was
able to read a closely typed page, since the acts shown do not require vision at close range. It must be
remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of checks
(Exhibits G to G-3) by her indicative of ability to see at normal reading distances. Writing or signing of
ones name, when sufficiently practiced, becomes automatic, so that, one need only to have a rough
indication of the place where the signature is to be affixed in order to be able to write it. Indeed, a close
examination of the checks, amplified in the photograph, Exhibit O, et seq., reinforces the contention of
oppositors that the alleged testatrix could not see at normal reading dis-, tance: the signatures in the
checks are written far above the printed base, lines, and the names of the payees as well as the amounts
written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more
fluid hand than hers.
Thus, for all intents and purposes of the rules on probate, the deceased Gliceria del Rosario was, as
appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have
required observance of the provisions of Article 808 of the Civil Code.
ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged.
The rationale behind the requirement of reading the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate),18 is to make the provisions thereof known to him, so
that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to
insure that the dispositions of the will are properly communicated to and understood
________________
18 Article 808, New Civil Code.
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VOL. 32, APRIL 30, 1970
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Garcia vs. Vasquez
Page 75 of 145
by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the
requirement that the will should be read to the latter, not only once but twice, by two different persons,
and that the witnesses have to act within the range of his (the testators) other senses.19
In connection with the will here in question, there is nothing in the records to show that the above
requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated
suffers from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against the denial by the probate
court of their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of
the estate of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex B).
The oppositors petition was based allegedly on the existence in the special administratrix of an interest
adverse to that of the estate. It was their contention that through fraud her husband had caused the
deceased Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by virtue of which the
latter purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y Narciso, the
ownership of 3 parcels of land and the improvements thereon, assessed at P334,050.00, for the sum of
P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex P, Petition)
reasoned out that since the properties were already sold no longer form part of the estate. The conflict
of interest would not be between the estate and third parties, but among the different claimants of said
properties, in which case, according to the court, the participation of the special administratrix
________________
19 Vol. III. Reyes and Puno, An Outline of Philippine Civil Law, 1967 ed., page 21, citing Alexander on
Wills.
504
504
Garcia vs. Vasquez
in the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely the
validity of the conveyance or sale of the properties. In short, if proper, the action for annulment would
have to be undertaken on behalf of the estate by the special administratrix, affecting as it does the
property or rights of the deceased.20 For the rule is that only where there is no special proceeding for
the settlement of the estate of the deceased may the legal heirs commence an action arising out of a
right belonging to their ancestor.21
Page 76 of 145
There is no doubt that to settle the question of the due execution and validity of the deed of sale, an
ordinary and separate action would have to be instituted, the matter not falling within the competence
of the probate court.22 Considering the facts then before it, i.e., the alleged deed of sale having been
executed by Gliceria del Rosario on 10 January 1961, when she was already practically blind; and that the
consideration of P30,000.00 seems to be unconscionably small for properties with a total assessed value
of P334,05.00, there was likelihood that a case for annulment might indeed be filed against the estate or
heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the alleged transferee,
cannot be expected to sue herself in an action to recover property that may turn out to belong to the
estate.22a Not only this, but the conduct of the special administratrix in securing new copies of the
owners duplicates of TCT Nos. 66201, 66202, and 66204, without the courts knowledge or authority,
and on the pretext that she needed them in the preparation of the inventory of the estate, when she
must have already known by then that the properties covered therein
________________
20 Section 2, Revised Rule 87.
21 Vera vs. Galauran, 67 Phil. 213.
22 Baquial vs. Amihan, 92 Phil. 501; Mallari vs. Mallari, 92 Phil. 694; Ongsingco vs. Tan, 97 Phil. 330.
22a Cf. Jaroda vs. Cusi, L-28214, 30 July 1969, 28 SCRA 1008.
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VOL. 32, APRIL 30, 1970
505
Garcia vs. Vasquez
were already conveyed to her husband by the deceased, being the latters successor, and having the
contract bind the land through issuance of new titles in her husbands name cannot but expose her to
the charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the
administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors motion to require the
Hongkong and Shanghai Bank to report all withdrawals made against the funds of the deceased after 2
September 1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and
81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex H) that it could not have taken
action on the complaint against the alleged withdrawals from the bank deposits of the deceased,
because as of that time the court had not yet been apprised that such deposits exist. Furthermore, as
explained by the special administratrix in her pleading of 30 October 1965, the withdrawals referred to
Page 77 of 145
by the oppositors could be those covered by checks issued in the name of Gliceria del Rosario during her
lifetime but cleared only after her death. That explanation, which not only appears plausible but has not
been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with the
issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of
the pendency of an action may be recorded in the office of the register of deeds of the province in which
the property is situated, if the action affects the title or the right of possession of (such) real
property.23 In the case at bar, the pending action which oppositors seek to annotate in the records of
TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No. L-26615). As
previously discussed in this opinion, however,
________________
23 Section 24, Revised Rule 14.
506
506
Garcia vs. Vasquez
that case is concerned merely with the correctness of the denial by the probate court of the motion for
the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the late
Gliceria del Rosario. In short, the issue in controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not involve or affect at all the title to, or
possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of
such case (L-26615) is not an action that can properly be annotated in the record of the titles to the
properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of
Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being
meritorious, the appealed order is set aside and the court below is ordered to remove the administratrix,
Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased Doa Gliceria
Avelino del Rosario as special administrator for the purpose of instituting action on behalf of her estate
to recover the properties allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L-
26864, petition is dismissed. No costs.
Concepcion, C.J., Dizon, Makalintal. Fernando, Teehankee and Villamor, JJ., concur.
Zaldivar and Castro, JJ., took no part.
Barredo, J., is on leave.
Page 78 of 145
Order reversed and set aside.
Notes.(a) Adverse interest as ground for removal an executor or administrator.Conflict between the
interest of the executor or administrator and that of the decedent in property is ground for the removal
of the executor or administrator. Such conflict exists where the executor or administrator asserts
personal title to certain stocks standing in the name of the decedent (In re Estate of Borromeo, L-6363,
Sept. 15, 1955, 51 O.G. 5145). It may not, how-
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Republic vs. Heras
ever be said to exist simply because the attorney representing the administrator was formerly
administrator of the same estate who was removed by the court on the ground of adverse interest
(Degala vs. Ceniza, 78 Phil. 791).
________________ Garcia vs. Vasquez, 32 SCRA 489, No. L-26615, No. L-26884, No. L-27200 April 30,
1970
OL. 90, MAY 25, 1979
183
Gonzales vs. Court of Appeals
No. L-37453. May 25, 1979.*
Page 79 of 145
RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
Court of Appeals; Evidence; Factual findings of Court of Appeals not generally reviewable.It will be
noted from the above assignments of errors that the same are substantially factual in character and
content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that
in this jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being
binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases.
Same; Same; Same.Stated otherwise, findings of facts by the Court of Appeals, when supported by
substantive evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are
final and cannot be disturbed by Us particularly because its premises are borne out by the record or
based upon substantial evidence and what is more, when such findings are correct. Assignments of
errors involving factual issues cannot be ventiliated
_______________
* FIRST DIVISION
184
184
in a review of the decision of the Court of Appeals because only legal questions may be raised. The
Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court of
Appeals sought to be reversed. Where the findings of the Court of Appeals are contrary to those of the
trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly proven evidence
becomes necessary. The general rule We have thus stated above is not without some recognized
exceptions.
Will; Settlement of Estate; It is presumed that a witness to a will has the qualifications prescribed by law,
unless the contrary is established by the oppositor.We reject petitioners contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of
the witness unless the contrary is proved otherwise by the opposing party.
Same; Same; Evidence; Naturalization Law; Word credible with regards to witnesses to a will does not
have the meaning of term credible witness used in the Naturalization Law.We also reject as without
merit petitioners contention that the term credible as used in the Civil Code should be given the same
meaning it has under the Naturalization Law where the law is mandatory that the petition for
Page 80 of 145
naturalization must be supported by two character witnesses who must prove their good standing in the
community, reputation for trustworthiness and reliableness, their honesty and uprightness.
Same; Same; Same; Words competent witness and credible witness compared.In the strict sense,
the competency of a person to be an instrumental witness to a will is determined by the statute, that is
Arts. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and
arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case
of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme
Court held and ruled that: Competency as a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as
a witness upon a given matter because he is competent, but may thereafter decide whether to believe or
not to believe his testimony.
185
VOL. 90, MAY 25, 1979
185
Same; Same; To be considered a credible witness to a will it is not mandatory that witness good
community standing and probity be first established.In fine, We state the rule that the instrumental
witnesses in order to be competent must be shown to have the qualifications under Article 820 of the
Civil Code and none of the disqualifications under Article 821 and for their testimony to be credible, that
is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and their
testimonies must be credible before the court allows the probate of the will they have attested.
Same; Same; Same; Attorneys; Contracts; A will duly acknowledged before a notary public has in its favor
the presumption of regularity, as for example, regarding the date when the notary was furnished the
residence certificates of the witnesses.But whether Atty. Paraiso was previously furnished with the
names and residence certificates of the witnesses on a prior occasion or on the very occasion and date in
April 15, 1961 when the will was executed, is of no moment for such data appear in the notarial
acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April
15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961.
And since Exhibit F is a notarial will duly acknowledged by the testatrix and the witnesses before a
notary public, the same is a public document executed and attested through the intervention of the
notary public and as such public document is evidence of the facts in clear, unequivocal manner therein
expressed. It has in its favor the presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely preponderant.
Same; Same; Same; Findings that testatrix dictated her will to her attorney without any note is a finding
of fact.It is also a factual findings of the Court of Appeals in holding that it was credible that Isabel
Page 81 of 145
Gabriel could have dictated the will, Exhibit F, without any note or document to Atty. Paraiso as against
the contention of petitioner that it was incredible.
186
186
Same; Same; Same; Attestation clause best evidence of date the will was signed.The attestation clause
which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the execution of the will. This is the very
purpose of the attestation clause which is made for the purpose of preserving in permanent form, a
record of the facts attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved.
Same; Same; Same; Fact that there was conflict of testimony as to identity of photographer who took a
photograph of the signing and attestation of the will, not a requirement of law, is of minor importance.
What matters most is the photograph itself.The law does not require a photographer for the execution
and attestation of the will. The fact that Miss Orobia mistakenly identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed because
what matters here is not the photographer but the photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya and Maria Gimpaya, Isabel Gabriel and Atty. Paraiso.
Same; Same; It cannot be expected that the testimony of all the witness will be identical in all their
minutest details.These are indeed unimportant details which could have been affected by the lapse of
time and the treachery of human memory such that by themselves would not alter the probative value
of their testimonies on the true execution of the will, (Pascua vs. de la Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person will be identical and coinciding with each other
with regard to details of an incident and that witnesses are not expected to remember all details. Human
experience teach us that contradictions of witnesses generally occur in the details of certain incidents,
after a long series of questionings, and far from being an evidence.
Same; Same; Findings of facts of trial court may be reviewed and reversed where it overlooked and
misinterpreted the facts on record.Findings of facts made by trial courts particularly when they are
based on conflicting evidence whose evaluation hinges on questions of credibility of contending
witnesses lies peculiarly within the province of trial courts and generally, the appellate court should not
interfere with the same. In the instant case, however, the Court
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VOL. 90, MAY 25, 1979
Page 82 of 145
187
of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances
established in the record.
Same; Same; The three instrumental witnesses to the will constitute the best evidence to the making of
the will.Petitioners exacerbation centers on the supposed incredibility of the testimonies of the
witnesses for the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in
the case at bar, the three instrumental witnesses who constitute the best evidence of the will-making
have testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the
law and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and We
go back to the rule that the Supreme Court cannot review and revise the findings of fact of the
respondent Court of Appeals.
PETITION for review of the decision of the Court of Appeals.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division,1 promulgated on May
4, 1973 in CA-G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel
Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the
Court of First In-
_______________
1 Penned by then Acting Presiding Justice Juan P. Enriquez, concurred in by Associate Justices Mateo
Canonoy and Ramon C. Fernandez.
* Justice Ramon C. Fernandez, a member of the First Division, took no part.
188
188
Page 83 of 145
stance of Rizal, docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been
executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary
and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue
in the municipality of Navotas, province of Rizal, her place of residence, on June 7, 1961 at the age of
eighty-five (85), having been born in 1876. It is likewise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private
respondent, with her husband and children, lived with the deceased at the latters residence prior and
up to the time of her death.
The will submitted for probate, Exhibit F, which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel
appear at the end of the will on page four and at the left margin of all the pages. The attestation clause,
which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing
kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati
na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig
ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at
bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng
lahat at bawat isa sa
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VOL. 90, MAY 25, 1979
189
amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawat dahon ng testamentong
ito.
Page 84 of 145
At the bottom thereof, under the heading Pangalan, are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading Tirahan, are their
respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas,
Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The
will is paged by typewritten words as follows: Unang Dahon and underneath (Page One), Ikalawang
Dahon and underneath (Page Two), etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal
in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that
all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides
Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud,
Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina, Rudyardo,
Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. To herein private respondent Lutgarda
Santiago, who was described in the will by the testatrix as aking mahal na pamangkin na aking pinalaki,
inalagaan at minahal na katulad ng isang tunay na anak and named as universal heir and executor, were
bequeathed all properties and estate, real or personal, already acquired, or to be acquired, in her
(testatrixs) name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;
190
190
3. that, at the time of the alleged execution of the purported will, the decedent lacked testamentary
capacity due to old age and sickness; and in the second alternative
4. that the purported will was procured through undue and improper pressure and influence on the
part of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo
rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contention that the purported will of the deceased
was procured through undue and improper pressure and influence on the part of the petitioner, or of
some other person for her benefit;
Page 85 of 145
2. That there is insufficient evidence to sustain the contention that at the time of the alleged
execution of the purported will, the deceased lacked testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the
deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate, Exhibit F is not
the purported will allegedly dictated by the deceased, executed and signed by her, and attested by her
three attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit F, the document presented for probate as the last will and testament of the
deceased Isabel Gabriel, is hereby DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only
issue decided on appeal was whether or not the will in question was executed and attested as required
by law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the
decision now under review, holding that the will in question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the three attesting
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191
witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in
the presence of the deceased and of each other as required by law,2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration3 of the aforesaid decision and such
motion was opposed4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their
respective Memoranda,5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution6 denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will
and testament of Isabel Gabriel was hot executed in accordance with law because the same was signed
on several occasions, that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation
of the evidence. We have carefully re-examined the oral and documentary evidence of record. There is
no reason to alter the findings of fact in the decision of this Court sought to be set aside.7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reversing the findings of fact
and conclusions of the trial court. The Court, after deliberating on the petition but without giving due
course resolved, in the Resolution dated Oct. 11, 1973 to
Page 86 of 145
______________
2 Annex B, Petition; Rollo, Vol. I, pp. 81-101.
3 Annexes H and I, Petition; Rollo, Vol. I, pp. 108, 154.
4 Annex K, Petition; Rollo, Vol. I, pp. 167-198.
5 Annexes L and M, Petition; Rollo, Vol. I, pp. 199-248.
6 Penned by Associate Justice Ramon C. Fernandez, and concurred in by Associate Justices Cecilia Muoz
Palma and Mateo Canonoy.
7 Annex N, Petition; Rollo, Vol. I, pp. 250-251.
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require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments adduced in the petition, as well as
the Comment8 of private respondent thereon, We denied the petition by Resolution on November 26,
1973,9 the question raised being factual and for insufficient showing that the findings of fact by
respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for
Reconsideration10 which private respondent answered by way of her Comment or Opposition11 filed on
January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to
give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document. Exhibit F was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witnesses.
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the will Exhibit F, was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the document
Exhibit F.
Page 87 of 145
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words Pangalan and Tinitirahan were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial courts finding that it was incredible that Isabel
Gabriel could have
______________
8 Rollo, Vol. II, pp. 270-312.
9 Rollo, Vol. II, p. 317.
10 Rollo, Vol. II, pp. 323-354.
11 Rollo, Vol. II, pp. 363-385.
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193
dictated the will, Exhibit F, without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not
physically present when the will, Exhibit F was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit F, the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character
and content. Hence, at the very outset, We must again state the oft-repeated and well-established rule
that in this jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being
binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases
enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743)12 and Tapas vs. CA (L-22202,
February 27; 1976, 69 SCRA 393),13
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Page 88 of 145
12 The citation of authorities which begins with Mamuyac vs. Abena, 67 Phil. 289 (1939) lists some 35
leading cases up to Ramirez Tel. Corp. vs. Bank of America, L-22614, Aug. 29, 1969, 29 SCRA 191.
13 De Garcia vs. Court of Appeals, 37 SCRA 129 (1971); Bunyi vs. Reyes, 39 SCRA 504 (1971); Napolis vs.
Court of Appeals, 43 SCRA 301 (1972); Talosig vs. Vda. de Nieba, 43 SCRA 472 (1972); Evangelista and Co.
vs. Abad Santos, 51 SCRA 416 (1973); Tiongco vs. de la Merced, 58 SCRA 89 (1974).
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194
and in the more recent cases of Baptista vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217)
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the
case of Chan vs. CA, this Court said:
x x x from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has
been well-settled that the jurisdiction of this Court in cases brought to us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive.
More specifically, in a decision exactly a month later, this Court, speaking through the then Justice Laurel,
it was held that the same principle is applicable, even if the Court of Appeals was in disagreement with
the lower court as to the weight of the evidence with a consequent reversal of its findings of fact. x x x
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are
not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the record or based upon substantial
evidence and what is more, when such findings are correct. Assignments of errors involving factual
issues cannot be ventilated in a review of the decision of the Court of Appeals because only legal
questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in
the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals
are contrary to those of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to
duly-proven evidence becomes necessary. The general rule We have thus stated above is not without
some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioners
assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that
the document, Exhibit F, was executed and attested as required by law when there was absolutely no
proof that the three instrumental
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VOL. 90, MAY 25, 1979
195
witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the
witnesses must be credible is an absolute requirement which must be complied with before an alleged
last will and testament may be admitted to probate and that to be a credible witness, there must be
evidence on record that the witness has a good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of
the witness are first established, his testimony may not be favorably considered. Petitioner contends that
the term credible is not synonymous with competent for a witness may be competent under Article
820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is
further urged that the term credible as used in the Civil Code should receive the same settled and well-
known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil
Code provisions on wills with respect to the qualifications of witnesses.
We find no merit to petitioners first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from
being a witness to a will. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of
this Code.
Art. 21. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during
the trial as to his good standing in the community, his reputation for trustwor-
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196
thiness and reliableness, his honesty and uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil
Page 90 of 145
Code are complied with, such that the soundness of his mind can be shown by or deduced from his
answers to the questions propounded to him, that his age (18 years or more) is shown from his
appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or
dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioners contention that it must first be
established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of
the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioners contention that the term credible as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory that
the petition for naturalization must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for naturalization are character witnesses in that being
citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the
period of time required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and
is not in any way disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth
Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest
the execution of a will or testament and affirm the formalities attendant to said execution. And We agree
with the respondent that the rulings laid down in the cases cited by petitioner concerning character
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197
witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed
under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of
any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of
unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the testators 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. While the petitioner submits that
Page 91 of 145
Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his qualifications
under the first Article and none of the disqualifications under the second Article, whereas Article 805
requires the attestation of three or more credible witnesses, petitioner concludes that the term credible
requires something more than just being competent and, therefore, a witness in addition to being
competent under Articles 820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous
terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no
evidence on record to show that the instrumental witnesses are credible in themselves, that is, that they
are of good standing in the community since one was a family driver by profession and the second the
wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife
Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
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grandchild of the testatrix. But the relation of employer and employee much less the humble social or
financial position of a person do not disqualify him to be a competent testamentary witness. (Molo-
Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil 344; Testate Estate of Raymundo, Off. Gaz., March
18, 1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned
in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious
from that portion of Article 820 which says may be a witness to the execution of a will mentioned in
Article 805 of this Code, and cites authorities that the word credible insofar as witnesses to a will are
concerned simply means competent. Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that Granting that a will was duly executed and that it was in existence at the time of, and
not revoked before, the death of the testator, still the provisions of the lost will must be clearly and
distinctly proved by at least two credible witnesses, Credible witnesses mean competent witnesses and
not those who testify to facts from or upon hearsay. (italics supplied).
In Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that Section
620 of the same Code of Civil Procedure provides that any person of sound mind, and of the age of
eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the
execution of a will. This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The
relation of employer and employee, or being a relative to the beneficiary in a will, does not disqualify
one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said witness must be credible,
that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point,
a few of which we may cite:
Page 92 of 145
A credible witness is one who is not disqualified to testify by mental incapacity, crime, or other cause.
Historical Soc. of Dauphin
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(Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a credible witness to a will means a competent witness. Appeal of
Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (Ibid, p. 341).
Expression credible witness in relation to attestation of wills means competent witness; that is, one
competent under the law to testify to fact of execution of will. Vernons Ann. Civ. St. art. 8283. Moos vs.
First State Bank of Uvalde, Tex. Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term credible, used in the statute of wills requiring that a will shall be attested by two credible
witnesses means competent; witnesses who, at the time of attesting the will, are legally competent to
testify, in a court of justice, to the facts attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of the time it is offered for probate. Smith
vs. Goodell, 101 N.E. 255, 256, 258 Ill. 145. (Ibid.)
Credible witnesses, as used in the statute relating to wills, means competent witnessesthat is, such
persons as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity,
interest, or the commission of crimes, or other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject matter or in the particular suit Hill vs.
Chicago Title & Trust co., 152 N.E. 545, 546, 322 111. 42. (Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by
the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of
his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth.
Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3,
1968, the Supreme Court held and ruled that: Competency as a witness is one thing, and it is another to
be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a
person to testify as a witness upon a given matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony.
In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to
have the qualifica199
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200
tions under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their
testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that
evidence be first established on record that the witnesses have a good standing in the community or that
they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be
such unless the contrary is established otherwise. In other words, the instrumental witnesses must be
competent and their testimonies must be credible before the court allows the probate of the will they
have attested. We, therefore, reject petitioners position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were credible witnesses, that is,
that they have a good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of the
will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the document
Exhibit F, in holding that the fact that the three typewritten lines under the typewritten words
pangalan and tinitirahan were left blank shows beyond cavil that the three attesting witnesses were
all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the will
without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when
the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed, and in holding that the grave contradictions,
evasions and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner
had been explained away.
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Since the above errors are factual, We must repeat what We have previously laid down that the findings
of fact of the appellate court are binding and controlling which We cannot review, subject to certain
exceptions which We will consider and discuss hereinafter. We are convinced that the appellate courts
findings are sufficiently justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation and execution of the will and that it was
coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals
Page 94 of 145
that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on
April 15, 1961 was unexpected as there was no prior appointment with him, but he explained that he
was available for any business transaction on that day and that Isabel Gabriel had earlier requested him
to help her prepare her will. The finding of the appellate court is amply based on the testimony of Celso
Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it
was the third time when Isabel Gabriel told him that he was going to witness the making of her will, as
well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to
Isabel Gabriels house which was nearby and from said house, they left in a car to the lawyers office,
which testimonies are recited in the respondent Courts decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before Exhibit F was executed. Celso Gimpayas residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpayas residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court
correctly observed that there was nothing surprising in these facts and that the securing of these
residence certificates two days and one day, respectively, before the execution of the will on April 15,
1961, far from showing an amazing coincidence,
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reveals that the spouses were earlier notified that they would be witnesses to the execution of Isabel
Gabriels will.
We also agree with the respondent Courts conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya
spouses that they started from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobias house in Philamlife, Quezon City to fetch
her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel
Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraisos office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that, the will
was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will
and that he told her that if she really wanted to execute her will, she should bring with her at least the
Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical
certificate from a physician notwithstanding the fact that he believed her to be of sound and disposition
mind. From this evidence, the appellate court rightly concluded, thus: It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was
pre-arranged by Isabel Gabriel herself.
Page 95 of 145
As to the appellate courts finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit T,
which the petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty.
Paraiso was handed a list (containing the names of the witnesses and their respective residence
certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated
by Atty. Paraiso himself who testified that it was only on said occasion that he
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received such list from Isabel Gabriel, We cannot agree with petitioners contention. We find no
contradiction for the respondent Court held that on the occasion of the will-making on April 15, 1961,
the list was given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit F is a notarial
will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the notary public and as such public
document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and
more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed
by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines
under the typewritten words pangalar and tinitirahan were left blank shows beyond cavil that the
three attesting witnesses were all present in the same occasion merits Our approval because this
conclusion is supported and borne out by the evidence found by the appellate court, thus: On page 5 of
Exhibit F, beneath the typewritten words names, Res. Tax Cert., date issued and place issued
the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on February 24,
1961 at Navotas, Rizal appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraisos
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Page 96 of 145
even the saie must be made to close relatives; and the seventh was the appointment of the appellant
Santiago as executrix of the will without bond. The technical description of the properties in paragraph 5
of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty.
Paraiso.
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied
by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the
will Exhibit F without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old
and sickly woman more than eighty-one years old and had been suffering from a brain injury caused by
two severe blows at her head and died of terminal cancer a few weeks after the execution of Exhibit F
While we can rule that this is a finding of fact which is within the competency of the respondent
appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our
power to revise and review, We nevertheless hold that the conclusion reached by the Court of Appeals
that the testatrix dictated her will without any note or memorandum appears to be fully supported by
the following facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively managed the affairs of the movie business
Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She was the
widow of the late Eligio Naval, former Governor of Rizal Province and acted as co-administratrix in the
Intestate Estate of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree with the respondent
Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified
to by the three attesting witnesses and the notary public himself.
Petitioners sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according
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to the respondent court, overwhelming that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria
Gimpaya. Such factual finding of the appellate court is very clear, thus: On the contrary, the record is
replete with proof that Matilde Orobia was physically present when the will was signed by Isabel Gabriel
on April 15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial courts
Page 97 of 145
conclusion that Orobias admission that she gave piano lessons to the child of the appellant on
Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia
could not have been present to witness the will on that dayis purely conjectural. Witness Orobia did
not admit having given piano lessons to the appellants child every Wednesday and Saturday without fail.
It is highly probable that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for
which reason she could have witnessed the execution of the will. Orobia spoke of occasions when she
missed giving piano lessons and had to make up for the same. Anyway, her presence at the law office of
Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving
piano lessons on the afternoon of the same day in Navotas, Rizal.
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the attestation
clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde
Orobia was present on that day of April 15, 1961 and that she witnessed the will by signing her name
thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation
clause which Matilde Orobia signed is the best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the execution of the will. This is the very
purpose of the attestation clause which is made for the purpose of preserving in permanent form, a
206
206
record of the facts attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132;
Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court
gave undue importance to the picture-takings as proof that the will was improperly executed, We agree
with the reasoning of the respondent court that: Matilde Orobias identification of the photographer as
Cesar Mendoza, contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso
said that the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of
time. The law does not require a photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly identified the photographer as Cesar Mendoza scarcely detracts from her
testimony that she was present when the will was signed because what matters here is not the
photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses
Celso Gimpaya. Further, the respondent Court correctly held: The trial court gave undue importance to
the picture-takings, jumping therefrom to the conclusion that the will was improperly executed. The
evidence however, heavily points to only one occasion of the execution of the will on April 15, 1961
which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were quite
Page 98 of 145
emphatic and positive when they spoke of this occasion. Hence, their identification of some photographs
wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous.
Continuing, the respondent Court declared: It is true that the second picture-taking was disclosed at the
cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first
incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly
no longer present was wholly unnecessary if not pointless. What was important was that the will was
duly executed and witnessed on the first occasion on
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April 15, 1961, and We agree with the Courts rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal requisites for the execution or
probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held
that said contradictions, evasions and misrepresentations had been explained away. Such discrepancies
as in the description of the typewriter used by Atty. Paraiso which he described as elite which to him
meant big letters which are of the type in which the will was typewritten but which was identified by
witness Jolly Bugarin of the N.B.I, as pica, the mistake in mentioning the name of the photographer by
Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr.these are indeed
unimportant details which could have been affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the probative value of their testimonies on the true
execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the
testimony of every person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details. Human experience teach us that
contradictions of witnesses generally occur in the details of certain incidents, after a long series of
questionings, and far from being an evidence of falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence the contradictions in their
testimony. (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate the
evidence presented in the course of the trial As a general rule, petitioner is correct but it is subject to
well-established exceptions. The right of the Court of Ap-
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Page 99 of 145
208
peals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing
the evidence has found that facts and circumstances of weight and influence have been ignored and
overlooked and the significance of which have been misinterpreted by the trial court, cannot be
disputed. Findings of facts made by trial courts particularly when they are based on conflicting evidence
whose evaluation hinges on questions of credibility of contending witnesses lies peculiarly within the
province of trial courts and generally, the appellate court should not interfere with the same. In the
instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted
the facts and circumstances established in the record. Whereas the appellate court said that Nothing in
the record supports the trial courts unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso; that the trial courts conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion based
not on facts but on inferences; that the trial court gave undue importance to the picture-takings,
jumping therefrom to the conclusion that the will was improperly executed and that there is nothing in
the entire record to support the conclusion of the court a quo that the will-signing occasion was a mere
coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the
signing of her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial
court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court
of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree
with the petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely
on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or
impossible; (3) when there is a grave abuse of discretion; (4) when the
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209
presence of each other as required by law. Specifically, We affirm that on April 15, 1961 the testatrix
Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila
in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from one Dr.
Chikiamko which she gave to Atty. Paraiso upon arriving at the latters office and told the lawyer that she
wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be
Page 100 of 145

written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language
known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will and after finishing the document, he read it to
her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the
will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also
at the left-hand margin of each and every page of the document in the presence also of the said three
witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of the
attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of
Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya
signed also the will at the bottom of the attestation clause and at the left-hand margin of the other
pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria
Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand margin
of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty.
Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the
occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit G,
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso,
taken on said occasion of the signing of the will, and another, Exhibit H, showing Matilde Orobia
signing
210
210
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor
of Navotas, Rizal to be her witnesses for he did not know beforehand the identities of the three attesting
witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraisos
claim-which was not controverted that he wrote down in his own hand the date appearing on page 5 of
Exhibit F dissipates any lingering doubt that he prepared and ratified the will on the date in question.
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could
have dictated the will, Exhibit F, without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: Nothing in the record supports the
trial courts unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso.
On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will
to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or
document. This fact jibes with the evidencewhich the trial court itself believed was unshakenthat
Isabel Gabriel was of sound disposing memory when she executed her will.
Exhibit F reveals only seven (7) dispositions which are not complicated but quite simple. The first was
Isabel Gabriels wish to be interred according to Catholic rites; the second was a general directive to pay
her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and
Page 101 of 145

P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces
including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the fifth was the
institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general
terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she willed in
favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in
extreme situations in which
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211
judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when
the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary
to the admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31,
1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R.
No. L-19570; Sept. 14, 1967).
Petitioners insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent
Courts findings of fact are not conflicting. Hence, the well-established rule that the decision of the Court
of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal
and it must be applied in the case at bar in its full force and effect, without qualification or reservation.
The above holding simply synthesizes the resolutions we have heretofore made in respect to petitioners
previous assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent
Court acted properly and correctly and has not departed from the accepted and usual course of judicial
proceedings as to call for the exercise of the power of supervision by the Supreme Court, and as We find
that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate
Exhibit F, the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Courts factual findings upon its summation and evaluation of the evidence
on record is unassailable that: From the welter of evidence presented, we are convinced that the will in
question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya signing and witnessing the same in the
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212
Page 102 of 145

the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained the
other copies for his file and notarial register. A few days following the signing of the will, Isabel Gabriel,
Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the lawyer that
she wanted another picture taken because the first picture did not turn out good. The lawyer told her
that this cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.
Petitioners exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at
bar, the three instrumental witnesses who constitute the best evidence of the will-making have testified
in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in
the practice thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to
receive no benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the petitioner, that
they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the
rule that the Supreme Court cannot review and revise the findings of facts of the respondent Court of
Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs
against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
Judgment affirmed.
Notes.The cumulative effect of circumstances may lead to the conclusion that the testator was indeed
mentally in-
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213
capacitated to make a will, that is, to know the nature of his estate which is to be disposed of the proper
objects of his bounty, and the character of the testamentary act. (Ramirez vs. Ramirez, 39 SCRA 147.)
Page 103 of 145

An acknowledging notary cannot serve as a witness to a will at the same time. (Cruz vs. Villasor, 54 SCRA
31.)
Even if its allowance is not opposed, the court must be convinced of the authenticity and due execution
of the will which requires that in such a situation at least one attesting witness must testify. (Vda. de
Precilla vs. Narciso, 46 SCRA 538.)
Nothing less than the best evidence should be required to be presented to the court before a document
purporting to be a will is to be admitted to probate or be denied probate. (Vda. de Precilla vs. Narciso, 46
SCRA 538.)
The jurisdiction of a probate court becomes vested upon the delivery thereto of the will even if no
petition for its allowance was filed until later, because, upon the will being deposited, the court could,
motu proprio have taken steps to fix the time and place for proving the will and issued the corresponding
notices conformably to what is prescribed by Section 3, Rule 76, of the Revised Rules of Court (Section 3,
Rule 77, of the Old Rules of Court.) (Rodriguez vs. Borja, 17 SCRA 418.)
Where intestate proceedings before a court of first instance had already been commenced, the probate
of the will should be filed in the same court, either in a separate special proceeding or in an appropriate
motion for said purpose filed is already pending intestate proceeding. (Uriarte vs. Court of First Instance
of Negros Occidental, 33 SCRA 252.)
A will maybe allowed even if some witnesses do not remember having attested to it, if other evidence
satisfactorily show due execution, and that failure of witness to identify his signature does not provate.
(Maravilla vs. Maravilla, 37 SCRA 672.) Gonzales vs. Court of Appeals, 90 SCRA 183, No. L-37453 May 25,
1979
Guerrero vs. Bihis
G.R. No. 174144. April 17, 2007.*

BELLA A. GUERRERO, petitioner, vs. RESURRECION A. BIHIS, respondent.
Wills and Succession; Notarial Law; Words and Phrases; A notarial will that is not acknowledged before a
notary public by the testator and the instrumental witnesses is void and cannot be accepted for probate;
An acknowledgment is the act of one who has executed a deed in going before some competent officer
and declaring it to be his act or deed, and in the case of a notarial will, that competent officer is the
notary public.One of the formalities required by law in connection with the execution of a notarial will
is that it must be acknowledged before a notary public by the testator and the witnesses. This formal
requirement is one of the indispensable requisites for the validity of a will. In other words, a notarial will
that is not acknowledged before a notary public by the testator and the instrumental witnesses is void
and cannot be accepted for probate. An acknowledgment is the act of one who has executed a deed in
Page 104 of 145

going before some competent officer and declaring it to be his act or deed. In the case of a notarial will,
that competent officer is the notary public.
Same; Same; The acknowledgment of a notarial will coerces the testator and the instrumental witnesses
to declare before an officer of the law, the notary public, that they executed and subscribed to the will as
their own free act or deed; Acknowledgment can only be made before a competent officer, that is, a
lawyer duly commissioned as a notary public.The acknowledgment of a notarial will coerces the
testator and the instrumental witnesses to declare before an officer of the law, the notary public, that
they executed and subscribed to
_______________
* FIRST DIVISION.
395
VOL. 521, APRIL 17, 2007
395
Guerrero vs. Bihis
the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus
paving the way 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 a certain mindset in making the testamentary dispositions to the persons instituted
as heirs or designated as devisees or legatees in the will. Acknowledgment can only be made before a
competent officer, that is, a lawyer duly commissioned as a notary public.
Same; Same; Outside the place of his commission, a notary public is bereft of power to perform any
notarial acthe is not a notary public; An acknowledgment taken outside the territorial limits of the
officers jurisdiction is void as if the person taking it were wholly without official character.A notary
publics commission is the grant of authority in his favor to perform notarial acts. It is issued within and
for a particular territorial jurisdiction and the notary publics authority is co-extensive with it. In other
words, a notary public is authorized to perform notarial acts, including the taking of acknowledgments,
within that territorial jurisdiction only. Outside the place of his commission, he is bereft of power to
perform any notarial act; he, is not a notary public. Any notarial act outside the limits of his jurisdiction
has no force and effect. As this Court categorically pronounced in Tecson v. Tecson, 61 Phil. 781 (1935):
An acknowledgment taken outside the territorial limits of the officers jurisdiction is void as if the person
taking it were wholly without official character.
Same; Same; The violation of a mandatory or a prohibitory statute renders the act illegal and void unless
the law itself declares its continuing validity.Article 5 of the Civil Code provides: ART. 5. Acts executed
against the provisions of mandatory or prohibitory laws shall be void, except when the law itself
authorizes their validity. The violation of a mandatory or a prohibitory statute renders the act illegal and
void unless the law itself declares its continuing validity. Here, mandatory and prohibitory statutes were
Page 105 of 145

transgressed in the execution of the alleged acknowledgment. The compulsory language of Article 806
of the Civil Code was not complied with and the interdiction of Article 240 of the Notarial Law was
breached. Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all completely void.
396
396
Guerrero vs. Bihis
PETITION for review on certiorari of a decision of the Court of Appeals.
Oliver S. Garcia for petitioner.
Ryan Jan G. Cruz for respondent.
CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau,1 siblings who fought bitterly over the
inheritance of their father Isaacs estate. Jurisprudence is also replete with cases involving acrimonious
conflicts between brothers and sisters over successional rights. This case is no exception.
On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and
respondent Resurreccion A, Bihis, died at the Metropolitan Hospital in Tondo, Manila.
On May 24, 1994, petitioner filed a petition for the probate of the last will and testament of the
decedent in Branch 952 of the Regional Trial Court of Quezon City where the case was docketed as Sp.
Proc. No. Q-9420661.
The petition alleged the following: petitioner was named as executrix in the decedents will and she was
legally qualified to act as such; the decedent was a citizen of the Philippines at
_______________
1 Jacob and Esau were the sons of Isaac and Rebekah. Even before they were born, they were struggling
against each other in the womb of their mother. Their prenatal striving foreshadowed later conflict.
(Genesis 25:2126) Jacob, the younger of the two, desired Esaus birthrightthe special honor that Esau
possessed as the older son which entitled him to a double portion of his fathers inheritance. Jacob was
later on able to acquire not only Esaus birthright and superior right to inheritance but also their fathers
blessing. (Genesis 25:2734, 27:140)
2 Presided by Judge (now Sandiganbayan Associate Justice) Diosdado M. Peralta.
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Guerrero vs. Bihis
the time of her death; at the time of the execution of the will, the testatrix was 79 years old, of sound
and disposing mind, not acting under duress, fraud or undue influence and was capacitated to dispose of
her estate by will.
Respondent opposed her elder sisters petition on the following grounds: the will was not executed and
attested as required by law; its attestation clause and acknowledgment did not comply with the
requirements of the law; the signature of the testatrix was procured by fraud and petitioner and her
children procured the will through undue and improper pressure and influence.
In an order dated November 9, 1994, the trial court appointed petitioner as special administratrix of the
decedents estate. Respondent opposed petitioners appointment but subsequently withdrew her
opposition. Petitioner took her oath as temporary special administratrix and letters of special
administration were issued to her.
On January 17, 2000, after petitioner presented her evidence, respondent filed a demurrer thereto
alleging that petitioners evidence failed to establish that the decedents will complied with Articles 804
and 805 of the Civil Code.
In a resolution dated July 6, 2001, the trial court denied the probate of the will ruling that Article 806 of
the Civil Code was not complied with because the will was acknowledged by the testatrix and the
witnesses at the testatrixs residence at No. 40 Kanlaon Street, Quezon City before Atty. Macario O.
Directo who was a commissioned notary public for and in Caloocan City. The dispositive portion of the
resolution read:
WHEREFORE, in view of the foregoing, the Court finds, and so declares that it cannot admit the last will
and testament of the late Felisa Tamio de Buenaventura to probate for the reasons hereinabove
discussed and also in accordance with Article 839 [of the Civil Code] which provides that if the
formalities required by law have not been complied with, the will shall be disallowed. In view thereof,
the Court shall henceforth proceed with intestate succession
398
398
Page 107 of 145

Guerrero vs. Bihis
in regard to the estate of the deceased Felisa Tamio de Buenaventura in accordance with Article 960 of
the [Civil Code], to wit: Art. 960. Legal or intestate succession takes place: (1) If a person dies without a
will, or with a void will, or one which has subsequently lost its validity, x x x.
SO ORDERED.3
Petitioner elevated the case to the Court of Appeals but the appellate court dismissed the appeal and
affirmed the resolution of the trial court.4
Thus, this petition.5
Petitioner admits that the will was acknowledged by the testatrix and the witnesses at the testatrixs
residence in Quezon City before Atty. Directo and that, at that time, Atty. Directo was a commissioned
notary public for and in Caloocan City. She, however, asserts that the fact that the notary public was
acting outside his territorial jurisdiction did not affect the validity of the notarial will.
Did the will acknowledged by the testatrix and the instrumental witnesses before a notary public
acting outside the place of his commission satisfy the requirement under Article 806 of the Civil Code? It
did not.
Article 806 of the Civil Code provides:
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.
_______________
3 Rollo, pp. 8187.
4 Decision, dated July 31, 2006 in CA-G.R. CV No. 76707. Penned by Associate Justice Amelita G.
Tolentino and concurred in by Associate Justices Portia Alio-Hormachuelos and Santiago Javier Ranada
(retired) of the Fourth Division of the Court of Appeals. Id., pp. 5564.
5 Under Rule 45 of the Rules of Court.
399
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Guerrero vs. Bihis
Page 108 of 145

One of the formalities required by law in connection with the execution of a notarial will is that it must
be acknowledged before a notary public by the testator and the witnesses.6 This formal requirement is
one of the indispensable requisites for the validity of a will.7 In other words, a notarial will that is not
acknowledged before a notary public by the testator and the instrumental witnesses is void and cannot
be accepted for probate.
and declaring it to be his act or deed.8 In the case of a notarial will, that competent officer is the notary
public.
The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare
before an officer of the law, the notary public, that they executed and subscribed
_______________
6 The other formalities are:
(1) the will must be in writing;

(2) it must be written in a language or dialect known to the testator;
(3) it must be subscribed at the end thereof by the testator himself or by the testators name written
by some other person in his presence and by his express direction;
(4) it must be attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another;
(5) the testator or the person requested by him to write his name and the instrumental witnesses of
the will shall also sign each and every page thereof, except the last, on the left margin;
(6) all the pages of the will must be numbered correlatively in letters placed on the upper part of each
page and
(7) the will must contain an attestation clause.
7 In the Matter of the Testate Estate of the Deceased Vicente G. Alberto, 105 Phil. 1281 (1959).
8 Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444 SCRA 61.
400
400
Guerrero vs. Bihis
to the will as their own free act or deed.9 Such declaration is under oath and under pain of perjury, thus
paving the way for the criminal prosecution of persons who participate in the execution of spurious wills,
or those executed without the free consent of the testator.10 It also provides a. further degree of
assurance that the testator is of a certain mindset in making the testamentary dispositions to the
persons instituted as heirs or designated as devisees or legatees in the will.11
Page 109 of 145

Acknowledgment can only be made before a competent officer, that is, a lawyer duly commissioned as a
notary public. In this connection, the relevant provisions ofthe Notarial Law provide:
SECTION 237.Form of commission for notary public.The appointment of a notary public shall be in
writing, signed by the judge, and substantially in the following form:
GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF __________
This is to certify that ________, of the municipality of _________ in said province, was on the ____ day
of ___________, anno Domini nineteen hundred and ____, appointed by me a notary public, within and
for the said province, for the term ending on the first day of January, anno Domini nineteen hundred and
_________.
_________________
Judge of the Court of
First Instance12 of said
Province
xxx xxx xxx
SECTION 240.Territorial jurisdiction.The jurisdiction of a notary public in a province shall be co-

extensive with the province.
_______________
9 Azuela v.Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 119.
10 Id.
11 Id.
12 Now, Regional Trial Court.
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Guerrero vs. Bihis
The jurisdiction of a notary public in the City of Manila shall be coextensive with said city. No notary shall
possess authority to do any notarial act beyond the limits of his jurisdiction. (emphases supplied)
Page 110 of 145

A notary publics commission is the grant of authority in his favor to perform notarial acts.13 It is issued
within and for a particular territorial jurisdiction and the notary publics authority is co-extensive with
it. In other words, a notary public is authorized to perform notarial acts, including the taking of
acknowledgments, within that territorial jurisdiction only. Outside the place of his commission, he is
bereft of power to perform any notarial act; he, is not a notary public. Any notarial act outside the limits
of his jurisdiction has no force and effect. As this Court categorically pronounced in Tecson v. Tecson:14
An acknowledgment taken outside the territorial limits of the officers jurisdiction is void as if the
person taking it were wholly without official character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in Quezon City, he lacked the authority
to take the acknowledgment of the testatrix and the instrumental witnesses. In the same vein, the
testatrix and her witnesses could not have validly acknowledged the will before him. Thus, Felisa Tamio
de Buenaventuras last will and testament was, in effect, not acknowledged as required by law.
Moreover, Article 5 of the Civil Code provides:
ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when
the law itself authorizes their validity.
The violation of a mandatory or a prohibitory statute renders the act illegal and void unless the law itself
declares its con-
_______________
13 2004 Rules on Notarial Practice.
14 61 Phil. 781 (1935).
402
402
Guerrero vs. Bihis
tinuing validity. Here, mandatory and prohibitory statutes were transgressed in the execution of the
alleged acknowledgment. The compulsory language of Article 806 of the Civil Code was not complied
with and the interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the
testatrix, her witnesses and Atty. Directo were all completely void.
The Court cannot turn a blind eye to Atty. Directos participation in the preparation, execution and
unlawful acknowledgment of Felisa Tamio de Buenaventuras will. Had he exercised his notarial
commission properly, the intent of the law to effectuate the decedents final statements15 as expressed
Page 111 of 145

in her will would not have come to naught.16 Hence, Atty. Directo should show cause why he should not
be administratively sanctioned as a member of the bar and as an officer of the court.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
Let a copy of this decision be furnished the Commission on Bar Discipline of the Integrated Bar of the
Philippines for investigation, report and recommendation on the possible misconduct of Atty. Macario O.
Directo.
_______________
15 A will is the testator speaking after death. Its provisions have substantially the same force and effect
in the probate court as if the testator stood before the court in full life making the declarations by word
of mouth as they appear in the will. (Dissenting opinion of J. Moreland in Santos v. Manalang, 27 Phil.
209 [1914])
16 For one, he testified during the proceedings in the trial court that the will was executed and signed by
the testatrix in his presence and in the presence of the instrumental witnesses in the decedents house
in Quezon City and it was also there where the same was acknowledged although his commission was
for Caloocan City. He also made it appear in the acknowledgment that the testatrix and the witnesses
personally appeared before him to execute and knowledge the will in Caloocan City where he was
commissioned as a notary public.
403
VOL. 521, APRIL 19, 2007
403
Espaol vs. Toledo-Mupas
SO ORDERED.
Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.
Puno (C.J., Chairperson), No part.
Petition denied.
Notes.Validity of a deed of sale is not affected by notarization of document in Tarlac though the land is
located in Pangasinan. (Sales vs. Court of Appeals, 211 SCRA 858 [1992])
Notarization of a deed of extrajudicial settlement has the effect of making it a public document that can
bind third parties. (Alejandrino vs. Court of Appeals, 295 SCRA 536 [1998])
Page 112 of 145

o0o Guerrero vs. Bihis, 521 SCRA 394, G.R. No. 174144 April 17, 2007
393
Lee vs. Tambago
A.C. No. 5281. February 12, 2008.*

MANUEL L. LEE, complainant, vs. ATTY. REGINO B. TAMBAGO, respondent.
Succession; Wills; Words and Phrases; A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate.A will is an act whereby a
person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition
of his estate, to take effect after his death. A will may either be notarial or holographic.
Page 113 of 145

Same; Same; Notarial Law; The object of solemnities surrounding the execution of wills is to close the
door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth
and authenticity.The law provides for certain formalities that must be followed in the execution of
wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and
fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. A
notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by
the testator himself. In addition, it should be attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
Same; Same; Same; A notarial will attested by only two witnesses is void.The will in question was
attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be
considered void. This is in consonance with the rule that acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.
Same; Same; Same; Words and Phrases; 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; The
acknowledgment in a notarial will has a two-fold purpose(1) to safeguard the testators wishes long
after his demise, and (2) to assure that his
_______________
* FIRST DIVISION.
394
394
Lee vs. Tambago
estate is administered in the manner that he intends it to be done.The Civil Code likewise requires that
a will must be acknowledged before a notary public by the testator and the witnesses. The importance
of this requirement is highlighted by the fact that it was segregated from the other requirements under
Article 805 and embodied in a distinct and separate provision. 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. It involves an extra step undertaken whereby the signatory actually declares to the notary public
that the same is his or her own free act and deed. The acknowledgment in a notarial will has a two-fold
purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.
Same; Same; Same; Notaries public are required to certify that the party to every document
acknowledged before him had presented the proper residence certificate (or exemption from the
residence tax), and to enter its number, place of issue and date as part of such certification, formalities
which are mandatory and cannot be disregarded.As the acknowledging officer of the contested will,
Page 114 of 145

respondent was required to faithfully observe the formalities of a will and those of notarization. As we
held in Santiago v. Rafanan, 440 SCRA 98 (2004): The Notarial Law is explicit on the obligations and
duties of notaries public. They are required to certify that the party to every document acknowledged
before him had presented the proper residence certificate (or exemption from the residence tax); and to
enter its number, place of issue and date as part of such certification. These formalities are mandatory
and cannot be disregarded, considering the degree of importance and evidentiary weight attached to
notarized documents. A notary public, especially a lawyer, is bound to strictly observe these elementary
requirements.
Same; Same; Same; A notary public, by having allowed the decedent to exhibit an expired residence
certificate, failed to comply with the requirements of both the old Notarial Law and the Residence Tax
Act.In the issuance of a residence certificate, the law seeks to establish the true and correct identity of
the person to whom it is issued, as well as the payment of residence taxes for the current year. By having
allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the
requirements of
395
395
Lee vs. Tambago
both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the
exhibition of the residence certificates of Noynay and Grajo.
Same; Same; Same; While a notary publics failure to file in the archives division a copy of the notarized
will is not a cause for disciplinary action, he could be faulted for failure to make the necessary entries
pertaining to the will in his notarial register.On the issue of whether respondent was under the legal
obligation to furnish a copy of the notarized will to the archives division, Article 806 provides: Art. 806.
Every will must be acknowledged before a notary public by the testator and the witness. The notary
public shall not be required to retain a copy of the will, or file another with the office of the Clerk of
Court. (emphasis supplied) Respondents failure, inadvertent or not, to file in the archives division a copy
of the notarized will was therefore not a cause for disciplinary action. Nevertheless, respondent should
be faulted for having failed to make the necessary entries pertaining to the will in his notarial register.
The old Notarial Law required the entry of the following matters in the notarial register, in chronological
order: 1. nature of each instrument executed, sworn to, or acknowledged before him; 2. person
executing, swearing to, or acknowledging the instrument; 3. witnesses, if any, to the signature; 4. date of
execution, oath, or acknowledgment of the instrument; 5. fees collected by him for his services as
notary; 6. give each entry a consecutive number; and 7. if the instrument is a contract, a brief description
of the substance of the instrument.
Same; Same; Same; Evidence; Secondary Evidence; A photocopy of a notary publics register is not
admissible as evidence of the entry of the execution of the will where he failed to comply with the
requirements for the admissibility of secondary evidence.A photocopy is a mere secondary evidence.
Page 115 of 145

It is not admissible unless it is shown that the original is unavailable. The proponent must first prove the
existence and cause of the unavailability of the original, otherwise, the evidence presented will not be
admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of the
entry of the execution of the will because it failed to comply with the requirements for the admissibility
of secondary evidence.
396
396
Lee vs. Tambago
Same; Same; Same; Defects in the observance of the solemnities prescribed by law render the entire will
invalid.Notaries public must observe with utmost care and utmost fidelity the basic requirements in
the performance of their duties, otherwise, the confidence of the public in the integrity of notarized
deeds will be undermined. Defects in the observance of the solemnities prescribed by law render the
entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature
of a will, considering that the testator and the witnesses, as in this case, are no longer alive to identify
the instrument and to confirm its contents. Accordingly, respondent must be held accountable for his
acts. The validity of the will was seriously compromised as a consequence of his breach of duty.
Legal Ethics; Attorneys; While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good
citizenship.The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the
Philippines, uphold the Constitution and obey the laws of the land. For a lawyer is the servant of the law
and belongs to a profession to which society has entrusted the administration of law and the
dispensation of justice. While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good
citizenship. As a servant of the law, a lawyer should moreover make himself an example for others to
emulate. Being a lawyer, he is supposed to be a model in the community in so far as respect for the law
is concerned.
Same; Same; Disbarment is the most severe form of disciplinary sanction; A notary public who acted
very irresponsibly in notarizing a will meted suspension from the practice of law, revocation of his
commission, and perpetual disqualification to be commissioned as a notary public.Disbarment is the
most severe form of disciplinary sanction. We have held in a number of cases that the power to disbar
must be exercised with great caution and should not be decreed if any punishment less severesuch as
reprimand, suspension, or finewill accomplish the end desired. The rule then is that disbarment is
meted out only in clear cases of misconduct that seriously affect the standing and character of the
lawyer as an officer of the court. Respondent, as notary public, evidently failed in the perform-
397
Page 116 of 145

397
Lee vs. Tambago
ance of the elementary duties of his office. Contrary to his claims that he exercised his duties as Notary
Public with due care and with due regard to the provision of existing law and had complied with the
elementary formalities in the performance of his duties x x x, we find that he acted very irresponsibly in
notarizing the will in question. Such recklessness warrants the less severe punishment of suspension
from the practice of law. It is, as well, a sufficient basis for the revocation of his commission and his
perpetual disqualification to be commissioned as a notary public.
ADMINISTRATIVE MATTER in the Supreme Court. Violation of Notarial Law and the Ethics of the Legal
Profession.
The facts are stated in the resolution of the Court.
Public Attorneys Office for complainant.

RESOLUTION
CORONA, J.:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B.
Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a
spurious last will and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the
contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and
Loreto Grajo, the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for
a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, halfsiblings of complainant.
The will was purportedly executed and acknowledged before respondent on June 30, 1965.1
Complainant, however,
_______________
1 Rollo, p. 3.
398
398
Page 117 of 145

Lee vs. Tambago
pointed out that the residence certificate2 of the testator noted in the acknowledgment of the will was
dated January 5, 1962.3 Furthermore, the signature of the testator was not the same as his signature as
donor in a deed of donation4 (containing his purported genuine signature). Complainant averred that
the signatures of his deceased father in the will and in the deed of donation were in any way (sic)
entirely and diametrically opposed from (sic) one another in all angle[s].5
Complainant also questioned the absence of notation of the residence certificates of the purported
witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely
copied from their respective voters affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives division of
the Records Management and Archives Office of the National Commission for Culture and the Arts
(NCCA). In this connection, the certification of the chief of the archives division dated September 19,
1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME
RAMIREZ on June 30, 1965 and is available in this Office[s] files.6
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false
allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in
question was fake and spurious. He alleged that complainant was not a legitimate son of Vicente
_______________
2 Now known as Community Tax Certificate.
3 Page two, Last Will and Testament of Vicente Lee, Sr., Rollo, p. 3.
4 Id., p. 10.
5 Id., p. 1.
6 Rollo, p. 9.
399
399
Lee vs. Tambago
Page 118 of 145

Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per
affidavit7 of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit8
of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. x x x.9
Respondent further stated that the complaint was filed simply to harass him because the criminal case
filed by complainant against him in the Office of the Ombudsman did not prosper.
Respondent did not dispute complainants contention that no copy of the will was on file in the archives
division of the NCCA. He claimed that no copy of the contested will could be found there because none
was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he
(complainant) did not first file an action for the declaration of nullity of the will and demand his share in
the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.10
In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions
of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an
infringement of legal ethics, particularly Canon 111 and Rule 1.0112 of the Code of Profes-
_______________
7 Dated July 11, 2001. Id., p. 94.
8 Dated July 11, 2001. Id., p. 95.
9 Id., p. 90.
10 Rollo, p. 107.
11 CANON 1A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
12 Rule 1.01A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
400
400
Lee vs. Tambago
Page 119 of 145

sional Responsibility (CPR).13 Thus, the investigating commissioner of the IBP Commission on Bar
Discipline recommended the suspension of respondent for a period of three months.
The IBP Board of Governors, in its Resolution No. XVII2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this
Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record
and the applicable laws and rules, and considering Respondents failure to comply with the laws in the
discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the
practice of law for one year and Respondents notarial commission is Revoked and Disqualified from
reappointment as Notary Public for two (2) years.14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a
certain degree the disposition of his estate, to take effect after his death.15 A will may either be notarial
or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of
solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity.16
_______________
13 Annex A, Report and Recommendation by Commissioner Elpidio G. Soriano III, dated February 27
2006. Rollo, p. 13.
14 Notice of Resolution, IBP Board of Governors. (Emphasis in the original)
15 CIVILCODE, Art. 783.
16 Jurado, Desiderio P., COMMENTS AND JURISPRUDENCE ON SUCCESSION, 8th ed. (1991), Rex
Bookstore, Inc., p. 52. In re: Will of Tan Diuco, 45 Phil. 807 (1924); Unson v. Abella, 43 Phil. 494 (1922);
401
401
Lee vs. Tambago
A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by
the testator himself. In addition, it should be attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.17
Page 120 of 145

The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone,
the will must be considered void.18 This is in consonance with the rule that acts executed against the
provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their
validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator
and the witnesses.19 The importance of this requirement is highlighted by the fact that it was
segregated from the other requirements under Article 805 and embodied in a distinct and separate
provision.20
or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory
actually declares to the notary public that the same is his or her own free act and deed.21 The
acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long
after his demise and (2) to assure that his estate is administered in the manner that he intends it to be
done.
A cursory examination of the acknowledgment of the will in question shows that this particular
requirement was neither
_______________
Aldaba v. Roque, 43 Phil. 379 (1922); Avera v. Garcia, 42 Phil. 145 (1921); Abangan v. Abangan, 40 Phil.
476 (1919).
20 Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 142.
21 Id.
402
402
Lee vs. Tambago
strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the
residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the
Page 121 of 145

notation of the testators old residence certificate in the same acknowledgment was a clear breach of
the law. These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the
formalities of a will and those of notarization. As we held in Santiago v. Rafanan:22
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify
that the party to every document acknowledged before him had presented the proper residence
certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part
of such certification.
These formalities are mandatory and cannot be disregarded, considering the degree of importance and
evidentiary weight attached to notarized documents.23 A notary public, especially a lawyer,24 is bound
to strictly observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a
document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax.Every contract, deed,
or other document acknowledged before a notary public shall have certified thereon
_______________
22 A.C. No. 6252, 5 October 2004, 440 SCRA 98.
23 Santiago v. Rafanan, id., at p. 99.
24 Under the old Notarial Law, non-lawyers may be commissioned as notaries public subject to certain
conditions. Under the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC, effective August 1, 2004),
however, only lawyers may be granted a notarial commission.
403
403
Lee vs. Tambago
that the parties thereto have presented their proper [cedula] residence certificate or are exempt from
the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate
the number, place of issue, and date of each [cedula] residence certificate as aforesaid.25
The importance of such act was further reiterated by Section 6 of the Residence Tax Act26 which stated:
Page 122 of 145

When a person liable to the taxes prescribed in this Act acknowledges any document before a notary
public x x x it shall be the duty of such person x x x with whom such transaction is had or business done,
to require the exhibition of the residence certificate showing payment of the residence taxes by such
person x x x.
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the
person to whom it is issued, as well as the payment of residence taxes for the current year. By having
allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the
requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his
failure to demand the exhibition of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will
to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The
notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk
of Court. (emphasis supplied)
_______________
25 REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 251.
26 Commonwealth Act No. 465.
404
404
Lee vs. Tambago
Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was
therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to
the will in his notarial register. The old Notarial Law required the entry of the following matters in the
notarial register, in chronological order:
1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the instrument.27
Page 123 of 145

In an effort to prove that he had complied with the abovementioned rule, respondent contended that he
had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a
photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a certification28
stating that the archives division had no copy of the affidavit of Bartolome Ramirez.
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is
unavailable. The proponent must first prove the existence and cause of the
_______________
27 REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 246.
28 Dated March 15, 2000, Rollo, p. 105.
405
405
Lee vs. Tambago
unavailability of the original,29 otherwise, the evidence presented will not be admitted. Thus, the
photocopy of respondents notarial register was not admissible as evidence of the entry of the execution
of the will because it failed to comply with the requirements for the admissibility of secondary evidence.
In the same vein, respondents attempt to controvert the certification dated September 21, 199930 must
fail. Not only did he present a mere photocopy of the certification dated March 15, 2000;31 its contents
did not squarely prove the fact of entry of the contested will in his notarial register.
Notaries public must observe with utmost care32 and utmost fidelity the basic requirements in the
performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds
will be undermined.33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This
carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering
that the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to
confirm its contents.34 Accordingly, respondent must be held
_______________
29 When the original document is unavailable.When the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital
Page 124 of 145

of its contents in some authentic document, or by the testimony of witnesses in the order stated. RULES
OF COURT, Rule 130, Sec. 5.
30 Supra note 6.
31 Rollo, p. 105.
32 Bon v. Ziga, A.C. No. 5436, 27 May 2004, 429 SCRA 185.
33 Zaballero v. Montalvan, A.C. No. 4370, 25 May 2004, 429 SCRA 78.
34 Annex A, Report and Recommendation by Commissioner Elpidio G. Soriano III, dated February 27,
2006, Rollo, p. 12.
406
406
Lee vs. Tambago
accountable for his acts. The validity of the will was seriously compromised as a consequence of his
breach of duty.35
In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission.The following derelictions of duty on the part of a notary
public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation
of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or entries in his notarial register touching his
notarial acts in the manner required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding cedula certificates.36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and
constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court37 and Canon 138 and Rule
1.0139 of the CPR.
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines,
uphold the Constitution and obey the laws of the land.40 For a lawyer is the
Page 125 of 145

_______________
35 Id., p. 13.
36 REVISED ADMINISTRATIVE CODE, Book 1, Title IV, Chapter 11.
37 Duties of attorneys.It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey
the laws of the Philippines;
(b) x x x, RULES OF COURT, Rule 138, Sec. 20, par. (a).
38 CANON 1, supra note 11.
39 Rule 1.01, supra note 12.
40 Montecillo v. Gica, 158 Phil. 443; 60 SCRA 235 (1974). Zaldivar v. Gonzales, G.R. Nos. L-79690-707, 7
October 1988, 166 SCRA 316.
407
407
Lee vs. Tambago
servant of the law and belongs to a profession to which society has entrusted the administration of law
and the dispensation of justice.41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a
lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of
the law, a lawyer should moreover make himself an example for others to emulate.42 Being a lawyer, he
is supposed to be a model in the community in so far as respect for the law is concerned.43
The practice of law is a privilege burdened with conditions.44 A breach of these conditions justifies
disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a
finding or acknowledgment that he has engaged in professional misconduct.45 These sanctions meted
out to errant lawyers include disbarment, suspension and reprimand.
Disbarment is the most severe form of disciplinary sanction.46 We have held in a number of cases that
the power to disbar must be exercised with great caution47 and should not be decreed if any
punishment less severesuch as reprimand,
_______________
Page 126 of 145

41 Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex Bookstore, Inc., p. 69.
Comments of IBP Committee that drafted the Code of Professional Responsibility, pp. 1-2 (1980).
42 Id.
43 Id.
44 Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex Bookstore, Inc., p. 465.
45 Guidelines for Imposing Lawyer Sanctions, Integrated Bar of the Philippines Commission on Bar
Discipline.
46 San Jose Homeowners Association, Inc. v. Romanillos, A.C. No. 5580, 15 June 2005, 460 SCRA 105.
47 Santiago v. Rafanan, supra note 22 at p. 101. Alitagtag v. Garcia, A.C. No. 4738, 10 June 2003, 403
SCRA 335.
408
408
Lee vs. Tambago
suspension, or finewill accomplish the end desired.48 The rule then is that disbarment is meted out
only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an
officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office.
Contrary to his claims that he exercised his duties as Notary Public with due care and with due regard to
the provision of existing law and had complied with the elementary formalities in the performance of his
duties x x x, we find that he acted very irresponsibly in notarizing the will in question. Such recklessness
warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient
basis for the revocation of his commission50 and his perpetual disqualification to be commissioned as a
notary public.51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He
violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code
of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial
commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary
public and as an officer of the
Page 127 of 145

_______________
48 Suzuki v. Tiamson, A.C. No. 6542, 30 September 2005, 471 SCRA 140; Amaya v. Tecson, A.C. No. 5996,
7 February 2005, 450 SCRA 510, 516.
49 Bantolo v. Castillon, Jr., A.C. No. 6589, 19 December 2005, 478 SCRA 449.
50 Cabanilla v. Cristal-Tenorio, A.C. No. 6139, 11 November 2003, 415 SCRA 361; Guerrero v. Hernando,
160-A Phil. 725; 68 SCRA 76 (1975).
51 Tan Tiong Bio v. Gonzales, A.C. No. 6634, 23 August 2007, 530 SCRA 748.
409
409
Lee vs. Tambago
court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public.
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the
Philippines and the Office of the Bar Confidant, as well as made part of the personal records of
respondent.
SO ORDERED.
Puno (C.J., Chairperson), Sandoval-Gutierrez, Azcuna and Leonardo-De Castro, JJ., concur.
Atty. Regino B. Tambago suspended from practice of law for one (1) year and his notarial commission
revoked for professional misconduct.
Notes.Unauthenticated alterations, cancellations or insertions do not invalidate a holographic will,

unless they were made on the date or on testators signature. (Ajero vs. Court of Appeals, 236 SCRA 488
[1994])
The possibility of a false document being adjudged as the will of the testator cannot be eliminated,
which is why if the holographic will is contested, the law requires three witnesses to declare that the will
was in the handwriting of the deceased. (Codoy vs. Calugay, 312 SCRA 333 [1999])
The acknowledgment of a notarial will coerces the testator and the instrumental witnesses to declare
before an officer of the law, the notary public, that they executed and subscribed to the will as their own
free act or deed. Acknowledgment can only be made before a competent officer, that is, a lawyer duly
commissioned as a notary public. Outside the place of his commission, a notary public is bereft of power
to perform any notarial acthe is not a notary public. An acknowledgment taken outside the territorial
Page 128 of 145

limits of the officers jurisdiction is void as if the person taking it were wholly without official character.
(Guerrero vs. Bihis, 521 SCRA 394 [2007]) Lee vs. Tambago, 544 SCRA 393, A.C. No. 5281 February 12,
2008
G.R. No. 145545.June 30, 2008.*

PAZ SAMANIEGO-CELADA, petitioner, vs. LUCIA D. ABENA, respondent.
Wills and Succession; While it is true that the attestation clause is not a part of the will, the court, after
examining the totality of the will, is of the considered opinion that error in the number of pages of the
will as stated in the attestation clause is not material to invalidate the subject will.Anent the
contestants submission that the will is fatally defective for the reason that its attestation clause states
that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages
only because the attestation
_______________
* SECOND DIVISION.
570
Page 129 of 145

570
Samaniego-Celada vs. Abena
is not a part of the notarial will, the same is not accurate. While it is true that the attestation clause is
not a part of the will, the court, after examining the totality of the will, is of the considered opinion that
error in the number of pages of the will as stated in the attestation clause is not material to invalidate
the subject will. It must be noted that the subject instrument is consecutively lettered with pages A, B,
and C which is a sufficient safeguard from the possibility of an omission of some of the pages. The error
must have been brought about by the honest belief that the will is the whole instrument consisting of
three (3) pages inclusive of the attestation clause and the acknowledgement. The position of the court is
in consonance with the doctrine of liberal interpretation enunciated in Article 809 of the Civil Code
which reads: 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.
Same; Petitioner and her siblings are not compulsory heirs of the decedent under Article 887 of the Civil
Code and as the decedent validly disposed of her properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the decedents estate.We find no reason to disturb
the abovementioned findings of the RTC. Since, petitioner and her siblings are not compulsory heirs of
the decedent under Article 887 of the Civil Code and as the decedent validly disposed of her properties
in a will duly executed and probated, petitioner has no legal right to claim any part of the decedents
estate.
PETITION for review on certiorari of a decision of the Court of Appeals.
Francisco L. Rosario, Jr. for petitioner.
Nazario B. Regino for respondent.

571
VOL. 556, JUNE 30, 2008
571
QUISUMBING,J.:
Page 130 of 145

This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the
Decision1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the
Decision2 dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati City. The RTC had
declared the last will and testament of Margarita S. Mayores probated and designated respondent Lucia
D. Abena as the executor of her will. It also ordered the issuance of letters testamentary in favor of
respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita)
while respondent was the decedents lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents,
grandparents and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-
Bombay, Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament3 on February 2, 1987 where she
bequeathed one-half of her undivided share of a real property located at Singalong Manila, consisting of
209.8 square meters, and covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A.
Pahingalo, and Florentino M. Abena in equal shares or one-third portion each. She likewise bequeathed
one-half of her undivided share of a real property located at San Antonio Village, Makati, consisting of
225 square meters, and covered by TCT No. 68920 to respondent, Isabelo M.
_______________
1 Rollo, pp. 41-48. Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices Salvador J.
Valdez, Jr. and Eliezer R. delos Santos concurring.
2 Id., at pp. 34-40. Penned by Judge Eriberto U. Rosario, Jr.
3 Id., at pp. 31-33.
572
572
Abena, and Amanda M. Abena in equal shares or one-third portion each. Margarita also left all her
personal properties to respondent whom she likewise designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita
before the RTC of Makati. The case was docketed as SP Proc. No. M-1531.
Page 131 of 145

On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita
probated and respondent as the executor of the will. The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby rendered:
1)declaring the will as probated;
2)declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in
paragraph VI of the probated will;
3)ordering the issuance of letters testamentary in favor of Lucia Abena.
So ordered.4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision
dated October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals
decision states:
WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is hereby
ORDERED DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO, with cost to
oppositors-appellants.
_______________
4 Id., at p. 40.
573
VOL. 556, JUNE 30, 2008
573
SO ORDERED.5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT INVALIDATING
THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;
Page 132 of 145

II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL
BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER
SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS
OF ADMINISTRATION TO HER.6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for
failure to comply with the formalities required by law, (2) whether said court erred in not declaring the
will invalid because it was procured through undue influence and pressure, and (3) whether it erred in
not declaring petitioner and her siblings as the legal heirs of Margarita, and in not issuing letters of
administration to petitioner.
Petitioner, in her Memorandum,7 argues that Margaritas will failed to comply with the formalities
required under Arti-
_______________
5 Id., at p. 47.
6 Id., at p. 85.
7 Id., at pp. 82-102.
574
574
cle 8058 of the Civil Code because the will was not signed by the testator in the presence of the
instrumental witnesses and in the presence of one another. She also argues that the signatures of the
testator on pages A, B, and C of the will are not the same or similar, indicating that they were not signed
on the same day. She further argues that the will was procured through undue influence and pressure
because at the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent
upon respondent and her nephews for support, and these alleged handicaps allegedly affected her
freedom and willpower to decide on her own. Petitioner thus concludes that Margaritas total
dependence on respondent and her nephews compelled her to sign the will. Petitioner likewise argues
that the Court of Appeals should have declared her and her siblings as the legal heirs of Margarita
Page 133 of 145

_______________
8 Art.805.Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testators 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.
575
VOL. 556, JUNE 30, 2008
575
since they are her only living collateral relatives in accordance with Articles 10099 and 101010 of the
Civil Code.
Respondent, for her part, argues in her Memorandum11 that the petition for review raises questions of
fact, not of law and as a rule, findings of fact of the Court of Appeals are final and conclusive and cannot
be reviewed on appeal to the Supreme Court. She also points out that although the Court of Appeals at
the outset opined there was no compelling reason to review the petition, the Court of Appeals
proceeded to tackle the assigned errors and rule that the will was validly executed, sustaining the
findings of the trial court that the formalities required by law were duly complied with. The Court of
Appeals also concurred with the findings of the trial court that the testator, Margarita, was of sound
mind when she executed the will.
After careful consideration of the parties contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject
of a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the
presence of the witnesses and of one another, whether or not the signatures of the witnesses on the
pages of the will were signed on the same day, and whether or not undue influence was exerted
Page 134 of 145

_______________
9 Art.1009.Should there be neither brothers nor sisters nor children of brothers or sisters, the other
collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by reason of relationship
by the whole blood.
10 Art.1010.The right to inherit ab intestato shall not extend beyond the fifth degree of relationship
in the collateral line.
11 Rollo, pp. 108-111.
576
576
upon the testator which compelled her to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of
Civil Procedure. Section 112 of Rule 45 limits this Courts review to questions of law only.
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial
evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are
not reviewable by this Court, unless the case falls under any of the following recognized exceptions:
(1)When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;
(2)When the inference made is manifestly mistaken, absurd or impossible;
(3)Where there is a grave abuse of discretion;
(4)When the judgment is based on a misapprehension of facts;
(5)When the findings of fact are conflicting;
(6)When the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee;
(7)When the findings are contrary to those of the trial court;
Page 135 of 145

(8)When the findings of fact are conclusions without citation of specific evidence on which they are
based;
_______________
12 SECTION1.Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition
for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.
577
VOL. 556, JUNE 30, 2008
577
(9)When the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents; and
(10)When the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record.13
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that
petitioners arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator
[Margarita Mayores] was not mentally capable of making a will at the time of the execution thereof, the
same is without merit. The oppositors failed to establish, by preponderance of evidence, said allegation
and contradict the presumption that the testator was of sound mind (See Article 800 of the Civil Code).
In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the
testator months before her death, testified that Margarita Mayores could engage in a normal
conversation and he even stated that the illness of the testator does not warrant hospitalization. Not
one of the oppositors witnesses has mentioned any instance that they observed act/s of the testator
during her lifetime that could be construed as a manifestation of mental incapacity. The testator may be
admitted to be physically weak but it does not necessarily follow that she was not of sound mind. [The]
testimonies of contestant witnesses are pure aforethought.
Anent the contestants submission that the will is fatally defective for the reason that its attestation
clause states that the will is composed of three (3) pages while in truth and in fact, the will consists of
two (2) pages only because the attestation is not a part of the notarial will, the same is not accurate.
While it is true that the attestation clause is not a part of the will, the court, after examining
Page 136 of 145

_______________
13 Ontimare, Jr. v. Elep, G.R. No. 159224, January 20, 2006, 479 SCRA 257, 265.
578
578
the totality of the will, is of the considered opinion that error in the number of pages of the will as stated
in the attestation clause is not material to invalidate the subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The error must have been brought about by the honest
belief that the will is the whole instrument consisting of three (3) pages inclusive of the attestation
clause and the acknowledgement. The position of the court is in consonance with the doctrine of liberal
interpretation enunciated in Article 809 of the Civil Code which reads:
In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects
and imperfections in the form of attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
The court also rejects the contention of the oppositors that the signatures of the testator were affixed on
different occasions based on their observation that the signature on the first page is allegedly different in
size, texture and appearance as compared with the signatures in the succeeding pages. After
examination of the signatures, the court does not share the same observation as the oppositors. The
picture (Exhibit H-3) shows that the testator was affixing her signature in the presence of the
instrumental witnesses and the notary. There is no evidence to show that the first signature was
procured earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the
subject will. In fact, the picture reveals that the testator was in a good mood and smiling with the other
witnesses while executing the subject will (See Exhibit H).
In fine, the court finds that the testator was mentally capable of making the will at the time of its
execution, that the notarial will presented to the court is the same notarial will that was executed and
that all the formal requirements (See Article 805 of the Civil
579
VOL. 556, JUNE 30, 2008
Page 137 of 145

579
Code) in the execution of a will have been substantially complied with in the subject notarial will.14
(Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her
siblings are not compulsory heirs of the decedent under Article 88715 of the Civil Code and as the
decedent validly disposed of her properties in a will duly executed and probated, petitioner has no legal
right to claim any part of the decedents estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of
Appeals in CA-G.R. CV No. 41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ., concur.
Petition denied, assailed decision affirmed.
_______________
14 Rollo, pp. 38-40.
15 Art.887.The following are compulsory heirs:
(1)Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2)In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate
children and descendants;
(3)The widow or widower;
(4)Acknowledged natural children, and natural children by legal fiction;
(5)Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do
they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
Page 138 of 145

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in
the manner and to the extent established by this Code. Samaniego-Celada vs. Abena, 556 SCRA 569, G.R.
No. 145545 June 30, 2008
You are here: Home 2013 June Case Digest: Matias v. Salud (L-10751, 23 June 1958)
Case Digest: Matias v. Salud (L-10751, 23

June 1958)
Published by paul on June 25, 2013 | Leave a response
Matias v. Salud
L-10751, 23 June 1958
FACTS:
The CFI denied probate of the will of Gabina Raquel. It must be noted that Gabina Raquel was
suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which made
writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina attempted to
sign, but since it was so painful she just managed to thumbmarked the foot of the document and
Page 139 of 145
the left margin at each page. The parties opposing the probate of the will contended that the will
was void due to the irregularities in the execution thereof.
One of the points raised by the oppositors was that the finger mark can not be regarded as the
decedents valid signature as it does not show distinct identifying ridgelines. And since the finger
mark was an invalid signature, there must appear in the attestation clause that another person
wrote the testators name at his request.
ISSUE:
W/N the will was valid.
HELD:
YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to

require dexterity that can be expected of very few persons; testators should not be required to
possess the skill of trained officers.
And as to the validity of the thumbprints as signature, the SC held that it has been held in a long
line of cases that a thumbprint is always a valid and sufficient signature for the purpose of
complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. A
thumbprint is considered as a valid and sufficient signature in complying with the requirements
of the article.
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.
Page 140 of 145
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 parte praying for a thirty-day period within which to deliberate on any
step to be taken as a result of the disallowance of the will. He also asked that the ten-
day period required by the court to submit the names of intestate heirs with their
addresses be held in abeyance.
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.
Page 141 of 145

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
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
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.

Page 142 of 145
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
Page 143 of 145
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
Page 144 of 145
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.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.
Teehankee, J, is on leave.
Page 145 of 145

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388

SUPREME COURT REPORTS ANNOTATED

Suroza vs. Honrado

Adm. Matter No. 2026-CFI. December 19, 1981.*

Same; Same; Inefficiency defined.Inefficiency implies negligence, incompetence, ignorance and

VOL. 110, DECEMBER 19, 1981

Suroza vs. Honrado

ADMINISTRATIVE MATTER in the Supreme Court.

The facts are stated in the opinion of the Court.

SUPREME COURT REPORTS ANNOTATED

Suroza vs. Honrado

VOL. 110, DECEMBER 19, 1981

Suroza vs. Honrado

SUPREME COURT REPORTS ANNOTATED

Suroza vs. Honrado

To that opposition was attached an affidavit of Dominga

VOL. 110, DECEMBER 19, 1981

Suroza vs. Honrado

SUPREME COURT REPORTS ANNOTATED

Suroza vs. Honrado

VOL. 110, DECEMBER 19, 1981

Suroza vs. Honrado

Suroza vs. Honrado

VOL. 110, DECEMBER 19, 1981

Suroza vs. Honrado

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

Concepcion, Jr., J., on leave.

Abad Santos, J., took no part.

Respondent fined equivalent to his salary for one (1) month.

SUPREME COURT REPORTS ANNOTATED

1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OP TESTATOR'S NAMB AT LATTER'S DIRECTION.

PETITION for review by eertiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

(Sgd.) "NUMERIANO EVANGELISTA

(Sgd.) ROSENDO CORTES

(Sgd.) "BIBIANA ILLEGIBLE"

Garcia vs. Lacuesta, et al.

VOL. 90, NOVEMBER 29, 1951

Castro, et al. vs. Orpiano and Rivera

1. EXECUTION OF WlLLS; POSITION OF TESTATOR AND WlTNESS WHEN WILL is SUBSCRIBED.The

APPEAL from a decree of the Court of First Instance of La Union. Moir, J.

The facts are stated in the opinion of the court.

Valerio Fontanilla and Andres Asprer, for appellant.

Anacleto Diaz, for appellees.

VOL. 18, FEBRUARY 27, 1911

Nera vs. Rimando.

PHILIPPINE REPORTS ANNOTATED

Nera vs. Rimando.

VOL. 18, FEBRUARY 27, 1911

United States vs. Alias.

Arellano, C. J., Mapa, Moreland, and Trent, JJ., concur.

SUPREME COURT REPORTS ANNOTATED

lcasiano vs. Icasiano

No. L-18979. June 30, 1964.

VOL. 11, JUNE 30, 1964

Icasiano vs. Icasiano

SUPREME COURT REPORTS ANNOTATED

Icasiano vs. Icasiano

APPEAL from an order of the Court of First Instance of Manila. Caizares, J.

The facts are stated in the opinion of the Court.

Jose W. Diokno for petitioner-appellee.