ARTICLE 806 AKO, si EUGENIA E.
IGSOLO, nakatira
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA
CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly
defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16
December 1982 at the age of 80. In refusing to
give legal recognition to the due execution of
this document, the Court is provided the
opportunity to assert a few important doctrinal
rules in the execution of notarial wills, all self-
evident in view of Articles 805 and 806 of the
Civil Code.
A will whose attestation clause does
not contain the number of pages on which
the will is written is fatally defective. A will
whose attestation clause is not signed by
the instrumental witnesses is fatally
defective. And perhaps most importantly, a
will which does not contain an
acknowledgment, but a merejurat, is fatally
defective. Any one of these defects is
sufficient to deny probate. A notarial will
with all three defects is just aching for
judicial rejection.
There is a distinct and consequential
reason the Civil Code provides a ito dito sa Maynila ika 10 ng Hunyo, 1981.
comprehensive catalog of imperatives for the
proper execution of a notarial will. Full and
faithful compliance with all the detailed
requisites under Article 805 of the Code leave
little room for doubt as to the validity in the due
execution of the notarial will. Article 806
likewise imposes another safeguard to the
validity of notarial wills — that they be
acknowledged before a notary public by the
testator and the witnesses. A notarial will
executed with indifference to these two codal
provisions opens itself to nagging questions as
to its legitimacy.
The case stems from a petition for
probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The
petition filed by petitioner Felix Azuela sought
to admit to probate the notarial will of Eugenia
E. Igsolo, which was notarized on 10 June
1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and
written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong
pagi-isip, pag-unawa at memoria ay nag-
hahayag na ito na ang aking huling habilin at
testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa
Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko
at ang taga-pag-ingat (Executor) ng habiling ito
ay magtatayo ng bantayog upang silbing ala-
ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at
isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-
alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28,
Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang
lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na
pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila
kay Felix Azuela at ang pagkakaloob kong ito
ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si
VART PAGUE na siyang nagpapatupad ng
huling habiling ito at kagustuhan ko rin na hindi
na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____
dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo,
tagapagmana na siya niyang Huling Habilin,
ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
nasabing tagapagmana sa ilalim ng kasulatang
nabanggit at sa kaliwang panig ng lahat at
bawa’t dahon, sa harap ng lahat at bawa’t sa
amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa
harap ng lahat at bawa’t isa sa amin, sa ilalim
ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawa’t dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
1
Page
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will
affixed their signatures on the left-hand margin
of both pages of the will, but not at the bottom
of the attestation clause.
The probate petition adverted to only
two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one
Irene Lynn Igsolo, who was alleged to have
resided abroad. Petitioner prayed that the will
be allowed, and that letters testamentary be
issued to the designated executor, Vart
Prague.
The petition was opposed by Geralda
Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of
"the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the
will is a forgery, and that the true purpose of its
emergence was so it could be utilized as a
defense in several court cases filed by
oppositor against petitioner, particularly for
forcible entry and usurpation of real property,
all centering on petitioner’s right to occupy the
properties of the decedent.3 It also asserted
that contrary to the representations of
petitioner, the decedent was actually survived
by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad.
Per records, it was subsequently alleged that
decedent was the widow of Bonifacio Igsolo,
who died in 1965,4 and the mother of a
legitimate child, Asuncion E. Igsolo, who
predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued
that the will was not executed and attested to
in accordance with law. She pointed out that
decedent’s signature did not appear on the
second page of the will, and the will was not
properly acknowledged. These twin arguments
are among the central matters to this petition.
After due trial, the RTC admitted the will
to probate, in an Order dated 10 August
1992.6 The RTC favorably took into account
the testimony of the three (3) witnesses to the
will, Quirino Agrava, Lamberto Leano, and
Juanito Estrada. The RTC also called to fore
"the modern tendency in respect to the
formalities in the execution of a will x x x with
the end in view of giving the testator more
freedom in expressing his last wishes;"7 and
from this perspective, rebutted oppositor’s
arguments that the will was not properly
executed and attested to in accordance with
law.
After a careful examination of the will
and consideration of the testimonies of the
subscribing and attesting witnesses, and
having in mind the modern tendency in respect
to the formalities in the execution of a will, i.e.,
the liberalization of the interpretation of the law
on the formal requirements of a will with the
end in view of giving the testator more freedom
in expressing his last wishes, this Court is
persuaded to rule that the will in question is
authentic and had been executed by the
testatrix in accordance with law.
On the issue of lack of
acknowledgement, this Court has noted that at
the end of the will after the signature of the
testatrix, the following statement is made under
the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____
dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin,
ngayong ika-10 ng Hunyo 1981, ay nilagdaan
ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng
lahat at bawa’t dahon, sa harap ng lahat at
bawa’t sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana
at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang
panig ng lahat at bawa’t dahon ng kasulatan
ito."
The aforequoted declaration comprises
the attestation clause and the
acknowledgement and is considered by this
Court as a substantial compliance with the
requirements of the law.
On the oppositor’s contention that the
attestation clause was not signed by the
subscribing witnesses at the bottom thereof,
this Court is of the view that the signing by the
subscribing witnesses on the left margin of the
second page of the will containing the
attestation clause and acknowledgment,
instead of at the bottom thereof, substantially
satisfies the purpose of identification and
attestation of the will.
With regard to the oppositor’s argument
2
that the will was not numbered correlatively in
Page
letters placed on upper part of each page and
that the attestation did not state the number of
pages thereof, it is worthy to note that the will
is composed of only two pages. The first page
contains the entire text of the testamentary
dispositions, and the second page contains the
last portion of the attestation clause and
acknowledgement. Such being so, the defects
are not of a serious nature as to invalidate the
will. For the same reason, the failure of the
testatrix to affix her signature on the left margin
of the second page, which contains only the
last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that
the signature of the testatrix on the will is a
forgery, the testimonies of the three
subscribing witnesses to the will are convincing
enough to establish the genuineness of the
signature of the testatrix and the due execution
of the will.8
The Order was appealed to the Court of
Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law,
Geralda Castillo. In a Decision dated 17
August 1995, the Court of Appeals reversed
the trial court and ordered the dismissal of the
petition for probate.9 The Court of Appeals
noted that the attestation clause failed to state
the number of pages used in the will, thus
rendering the will void and undeserving of
probate.10
Hence, the present petition.
Petitioner argues that the requirement
under Article 805 of the Civil Code that "the
number of pages used in a notarial will be
stated in the attestation clause" is merely
directory, rather than mandatory, and thus
susceptible to what he termed as "the
substantial compliance rule."11
The solution to this case calls for the
application of Articles 805 and 806 of the Civil
Code, which we replicate in full.
Art. 805. Every will, other than a
holographic will, must be subscribed at the end
thereof by the testator himself or by the
testator's name written by some other person
in his presence, and by his express direction,
and attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by
him to write his name and the instrumental
witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages
shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of
pages used upon which the will is written, and
the fact that the testator signed the will and
every page thereof, or caused some other
person to write his name, under his express
direction, in the presence of the instrumental
witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language
not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be
acknowledged before a notary public by the
testator and the witnesses. The notary public
shall not be required to retain a copy of the will,
or file another with the office of the Clerk of
Court.
The appellate court, in its Decision,
considered only one defect, the failure of the
attestation clause to state the number of pages
of the will. But an examination of the will itself
reveals several more deficiencies.
As admitted by petitioner himself, the
attestation clause fails to state the number of
pages of the will.12 There was an incomplete
attempt to comply with this requisite, a space
having been allotted for the insertion of the
number of pages in the attestation clause. Yet
the blank was never filled in; hence, the
requisite was left uncomplied with.
The Court of Appeals pounced on this
defect in reversing the trial court, citing in the
process Uy Coque v. Navas L. Sioca13 and In
re: Will of Andrada.14 In Uy Coque, the Court
noted that among the defects of the will in
question was the failure of the attestation
clause to state the number of pages contained
in the will.15 In ruling that the will could not be
admitted to probate, the Court made the
following consideration which remains highly
relevant to this day: "The purpose of requiring
the number of sheets to be stated in the
attestation clause is obvious; the document
might easily be so prepared that the
removal of a sheet would completely
change the testamentary dispositions of the
will and in the absence of a statement of the
total number of sheets such removal might
be effected by taking out the sheet and
changing the numbers at the top of the
following sheets or pages. If, on the other
hand, the total number of sheets is stated in
the attestation clause the falsification of the
document will involve the inserting of new
pages and the forging of the signatures of the
testator and witnesses in the margin, a matter
attended with much greater difficulty."16
The case of In re Will of
Andrada concerned a will the attestation clause
of which failed to state the number of sheets or
pages used. This consideration alone was
sufficient for the Court to declare "unanim[ity]
3
upon the point that the defect pointed out in the
Page
attesting clause is fatal."17 It was further
observed that "it cannot be denied that the x x
x requirement affords additional security
against the danger that the will may be
tampered with; and as the Legislature has
seen fit to prescribe this requirement, it must
be considered material."18
Against these cited cases, petitioner
cites Singson v. Florentino19 and Taboada v.
Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite
the fact that the attestation clause did not state
the number of pages of the will. Yet the
appellate court itself considered the import of
these two cases, and made the following
distinction which petitioner is unable to rebut,
and which we adopt with approval:
Even a cursory examination of the Will
(Exhibit "D"), will readily show that the
attestation does not state the number of pages
used upon which the will is written. Hence, the
Will is void and undeserving of probate.
We are not impervious of the Decisions
of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161
and Apolonio [Taboada] versus Hon. Avelino
Rosal, et al., 118 SCRA 195," to the effect that
a will may still be valid even if the attestation
does not contain the number of pages used
upon which the Will is written. However, the
Decisions of the Supreme Court are not
applicable in the aforementioned appeal at
bench. This is so because, in the case of
"Manuel Singson versus Emilia Florentino, et
al., supra," although the attestation in the
subject Will did not state the number of pages
used in the will, however, the same was found
in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the
Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation
clause shall state the number of pages or
sheets upon which the will is written, which
requirement has been held to be mandatory as
an effective safeguard against the possibility of
interpolation or omission of some of the pages
of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In
re Will of Andrada, 42 Phil. 180; Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481; Echevarria vs. Sarmiento, 66 Phil. 611).
The ratio decidendi of these cases seems to be
that the attestation clause must contain a
statement of the number of sheets or pages
composing the will and that if this is missing or
is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not
by evidence aliunde, but by a consideration or
examination of the will itself. But here the
situation is different. While the attestation
clause does not state the number of sheets or
pages upon which the will is written, however,
the last part of the body of the will contains a
statement that it is composed of eight pages,
which circumstance in our opinion takes this
case out of the rigid rule of construction and
places it within the realm of similar cases
where a broad and more liberal view has been
adopted to prevent the will of the testator from
being defeated by purely technical
considerations." (page 165-165, supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon.
Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number
of pages used in the:
"x x x
We have examined the will in question
and noticed that the attestation clause failed to
state the number of pages used in writing the
will. This would have been a fatal defect were it
not for the fact that, in this case, it is
discernible from the entire will that it is really
and actually composed of only two pages duly
signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page
which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end
or at the bottom while the instrumental
witnesses signed at the left margin. The other
page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself
states that "this Last Will and Testament
consists of two pages including this page"
(pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the
number of pages used in the will is not stated
in any part of the Will. The will does not even
contain any notarial acknowledgment wherein
the number of pages of the will should be
stated.21
Both Uy Coque and Andrada were
decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory
provision governing the formal requirement of
wills was Section
618 of the Code of Civil
Procedure.22 Reliance on these cases remains
apropos, considering that the requirement that
the attestation state the number of pages of the
will is extant from Section 618.23 However, the
enactment of the Civil Code in 1950 did put in
force a rule of interpretation of the
requirements of wills, at least insofar as the
attestation clause is concerned, that may vary
from the philosophy that governed these two
cases. Article 809 of the Civil Code states: "In
4
the absence of bad faith, forgery, or fraud, or
Page
undue and improper pressure and influence,
defects and imperfections in the form of
attestation or in the language used therein
shall not render the will invalid if it is proved
that the will was in fact executed and attested
in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the
report of the Civil Code Commission, which
stated that "the underlying and fundamental
objective permeating the provisions on the
[law] on [wills] in this project consists in the
[liberalization] of the manner of their execution
with the end in view of giving the testator more
[freedom] in [expressing] his last wishes. This
objective is in accord with the [modern
tendency] in respect to the formalities in the
execution of wills."24 However, petitioner
conveniently omits the qualification offered by
the Code Commission in the very same
paragraph he cites from their report, that such
liberalization be "but with sufficient safeguards
and restrictions to prevent the commission of
fraud and the exercise of undue and improper
pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features
an extensive discussion made by Justice
Regalado, speaking for the Court on the
conflicting views on the manner of
interpretation of the legal formalities required in
the execution of the attestation clause in
wills.27 Uy Coque and Andrada are cited
therein, along with several other cases, as
examples of the application of the rule of strict
construction.28 However, the Code
Commission opted to recommend a more
liberal construction through the "substantial
compliance rule" under Article 809. A
cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to
disregarding those defects that can be supplied
by an examination of the will itself: whether all
the pages are consecutively numbered;
whether the signatures appear in each and
every page; whether the subscribing witnesses
are three or the will was notarized. All these
are facts that the will itself can reveal, and
defects or even omissions concerning them in
the attestation clause can be safely
disregarded. But the total number of pages,
and whether all persons required to sign
did so in the presence of each other must
substantially appear in the attestation
clause, being the only check against
perjury in the probate
29
proceedings. (Emphasis supplied.)
The Court of Appeals did cite these
comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure
to state the number of pages of the will in the
attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself,
the Court refused to allow the probate of a will
whose attestation clause failed to state that the
witnesses subscribed their respective
signatures to the will in the presence of the
testator and of each other,30 the other omission
cited by Justice J.B.L. Reyes which to his
estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be
stated that the rule, as it now stands, is that
omission which can be supplied by an
examination of the will itself, without the need
of resorting to extrinsic evidence, will not be
fatal and, correspondingly, would not obstruct
the allowance to probate of the will being
assailed. However, those omissions which
cannot be supplied except by
evidence aliunde would result in the
invalidation of the attestation clause and
ultimately, of the will itself."31 Thus, a failure by
the attestation clause to state that the testator
signed every page can be liberally construed,
since that fact can be checked by a visual
examination; while a failure by the attestation
clause to state that the witnesses signed in one
another’s presence should be considered a
fatal flaw since the attestation is the only
textual guarantee of compliance.32
The failure of the attestation clause to
state the number of pages on which the will
was written remains a fatal flaw, despite Article
809. The purpose of the law in requiring the
clause to state the number of pages on which
the will is written is to safeguard against
possible interpolation or omission of one or
some of its pages and to prevent any increase
or decrease in the pages.33 The failure to state
the number of pages equates with the absence
of an averment on the part of the instrumental
witnesses as to how many pages consisted the
will, the execution of which they had ostensibly
just witnessed and subscribed to.
Following Caneda, there is substantial
compliance with this requirement if the will
states elsewhere in it how many pages it is
comprised of, as was the situation
inSingson and Taboada. However, in this case,
there could have been no substantial
compliance with the requirements under Article
805 since there is no statement in the
attestation clause or anywhere in the will itself
as to the number of pages which comprise the
will.
At the same time, Article 809 should not
deviate from the need to comply with the
formal requirements as enumerated under
Article 805. Whatever the inclinations of the
members of the Code Commission in
5
incorporating Article 805, the fact remains that
Page
they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618
of the Code of Civil Procedure, convinced that
these remained effective safeguards against
the forgery or intercalation of notarial
wills.34 Compliance with these requirements,
however picayune in impression, affords the
public a high degree of comfort that the testator
himself or herself had decided to convey
property post mortem in the manner
established in the will.35 The transcendent
legislative intent, even as expressed in the
cited comments of the Code Commission,
is for the fruition of the testator’s
incontestable desires, and not for the
indulgent admission of wills to probate.
The Court could thus end here and
affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of
even more critical defects that should
necessarily lead to its rejection.
For one, the attestation clause was
not signed by the instrumental
witnesses. While the signatures of the
instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the
bottom of the attestation clause which after all
consists of their averments before the notary
public.
Cagro v. Cagro36 is material on this
point. As in this case, "the signatures of the
three witnesses to the will do not appear at the
bottom of the attestation clause, although the
page containing the same is signed by the
witnesses on the left-hand margin."37 While
three (3) Justices38 considered the signature
requirement had been substantially complied
with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation
clause had not been duly signed, rendering the
will fatally defective.
There is no question that the signatures
of the three witnesses to the will do not appear
at the bottom of the attestation clause,
although the page containing the same is
signed by the witnesses on the left-hand
margin.
We are of the opinion that the position
taken by the appellant is correct. The
attestation clause is "a memorandum of the
facts attending the execution of the will"
required by law to be made by the attesting
witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause
cannot be considered as an act of the
witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends
that signatures of the three witnesses on the
left-hand margin conform substantially to the
law and may be deemed as their signatures to
the attestation clause. This is untenable,
because said signatures are in compliance with
the legal mandate that the will be signed on the
left-hand margin of all its pages. If an
attestation clause not signed by the three
witnesses at the bottom thereof, be admitted
as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and
in the absence of the testator and any or all of
the witnesses.39
The Court today reiterates the continued
efficacy of Cagro. Article 805 particularly
segregates the requirement that the
instrumental witnesses sign each page of the
will, from the requisite that the will be "attested
and subscribed by [the instrumental
witnesses]." The respective intents behind
these two classes of signature are distinct from
each other. The signatures on the left-hand
corner of every page signify, among others,
that the witnesses are aware that the page
they are signing forms part of the will. On the
other hand, the signatures to the attestation
clause establish that the witnesses are
referring to the statements contained in the
attestation clause itself. Indeed, the attestation
clause is separate and apart from the
disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand
margin of the page containing the unsigned
attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in
the clause, since the signatures that do appear
on the page were directed towards a wholly
different avowal.
The Court may be more charitably
disposed had the witnesses in this case signed
the attestation clause itself, but not the left-
hand margin of the page containing such
clause. Without diminishing the value of the
instrumental witnesses’ signatures on each
and every page, the fact must be noted that it
is the attestation clause which contains the
utterances reduced into writing of the
testamentary witnesses themselves. It is the
witnesses, and not the testator, who are
required under Article 805 to state the number
of pages used upon which the will is written;
the fact that the testator had signed the will and
every page thereof; and that they witnessed
and signed the will and all the pages thereof in
the presence of the testator and of one
another. The only proof in the will that the
witnesses have stated these elemental facts
would be their signatures on the attestation
clause.
Thus, the subject will cannot be
considered to have been validly attested to by
6
Page
the instrumental witnesses, as they failed to
sign the attestation clause.
Yet, there is another fatal defect to the
will on which the denial of this petition should
also hinge. The requirement under Article 806
that "every will must be acknowledged before a
notary public by the testator and the witnesses"
has also not been complied with. The
importance of this requirement is highlighted by
the fact that it had been segregated from the
other requirements under Article 805 and
entrusted into a separate provision, Article 806.
The non-observance of Article 806 in this case
is equally as critical as the other cited flaws in
compliance with Article 805, and should be
treated as of equivalent import.
In lieu of an acknowledgment, the notary
public, Petronio Y. Bautista, wrote "Nilagdaan
ko at ninotario ko ngayong10 ng Hunyo 10
(sic), 1981 dito sa Lungsod ng Maynila."40 By
no manner of contemplation can those words
be construed as an acknowledgment. An
acknowledgment is the act of one who has
executed a deed in going before some
competent officer or court and declaring it to be
his act or deed.41 It involves an extra step
undertaken whereby the signor actually
declares to the notary that the executor of a
document has attested to the notary that the
same is his/her own free act and deed.
It might be possible to construe the
averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is
that part of an affidavit where the notary
certifies that before him/her, the document was
subscribed and sworn to by the
executor.42 Ordinarily, the language of
the jurat should avow that the document was
subscribed and sworn before the notary public,
while in this case, the notary public averred
that he himself "signed and notarized" the
document. Possibly though, the word
"ninotario" or "notarized" encompasses the
signing of and swearing in of the executors of
the document, which in this case would involve
the decedent and the instrumental witnesses.
Yet even if we consider what was
affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the
express requirement of Article 806 is that the
will be "acknowledged", and not merely
subscribed and sworn to. The will does not
present any textual proof, much less one under
oath, that the decedent and the instrumental
witnesses executed or signed the will as their
own free act or deed. The acknowledgment
made in a will provides for another all-
important legal safeguard against spurious
wills or those made beyond the free consent of
the testator. An acknowledgement is not an
empty meaningless act.43 The
acknowledgment coerces the testator and the
instrumental witnesses to declare before an
officer of the law that they had executed and
subscribed to the will as their own free act or
deed. Such declaration is under oath and
under pain of perjury, thus allowing for the
criminal prosecution of persons who participate
in the execution of spurious wills, or those
executed without the free consent of the
testator. It also provides a further degree of
assurance that the testator is of certain
mindset in making the testamentary
dispositions to those persons he/she had
designated in the will.
It may not have been said before, but
we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not
acknowledged before a notary public by the
testator and the witnesses is fatally
defective, even if it is subscribed and sworn
to before a notary public.
There are two other requirements under
Article 805 which were not fully satisfied by the
will in question. We need not discuss them at
length, as they are no longer material to the
disposition of this case. The provision
requires that the testator and the instrumental
witnesses sign each and every page of the will
on the left margin, except the last; and that all
the pages shall be numbered correlatively in
letters placed on the upper part of each page.
In this case, the decedent, unlike the
witnesses, failed to sign both pages of the will
on the left margin, her only signature appearing
at the so-called "logical end"44 of the will on its
first page. Also, the will itself is not numbered
correlatively in letters on each page, but
instead numbered with Arabic numerals. There
is a line of thought that has disabused the
notion that these two requirements be
construed as mandatory.45 Taken in isolation,
these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as
these omissions are not decisive to the
adjudication of this case, they need not be
dwelt on, though indicative as they may be of a
general lack of due regard for the requirements
under Article 805 by whoever executed the will.
All told, the string of mortal defects
which the will in question suffers from makes
the probate denial inexorable.
WHEREFORE, the petition is DENIED.
Costs against petitioner.
SO ORDERED.
7
Page
G.R. No. L-20357 November 25, 1967 acknowledged before a notary public by the
IN THE MATTER OF THE PETITION FOR testator and also by the witnesses is
THE ALLOWANCE OF THE WILL OF indispensable for its validity (In re: Testate
GREGORIO GATCHALIAN, deceased. Estate of Alberto, G. R. No. L-11948, April 29,
PEDRO REYES GARCIA, petitioner- 1959). As the document under consideration
appellant, does not comply with this requirement, it is
vs. obvious that the same may not be probated.
FELIPE GATCHALIAN, AURORA G. WHEREFORE, the decision appealed
CAMINS, ANGELES G. COSCA, FEDERICO from is affirmed, with costs.
G. TUBOG, VIRGINIA G. TALANAY and
ANGELES G. TALANAY, oppositors-
appellees.

DIZON, J.:
This is an appeal taken by Pedro Reyes Garcia
from the decision of the Court of First Instance
of Rizal in Special Proceedings No. 2623
denying the allowance of the will of the late
Gregorio Gatchalian, on the ground that the
attesting witnesses did not acknowledge it
before a notary public, as required by law.
On March 15, 1967, Gregorio
Gatchalian, a widower of 71 years of age, died
in the municipality of Pasig, Province of Rizal,
leaving no forced heirs. On April 2 of the same
year, appellant filed a petition with the above
named court for the probate of said alleged will
(Exhibit "C") wherein he was instituted as sole
heir. Felipe Gatchalian, Aurora G. Camins,
Angeles G. Cosca, Federico G. Tubog, Virginia
G. Talanay and Angeles G. Talanay, appellees
herein, opposed the petition on the ground,
among others, that the will was procured by
fraud; that the deceased did not intend the
instrument signed by him to be as his will; and
that the deceased was physically and mentally
incapable of making a will at the time of the
alleged execution of said will.
After due trial, the court rendered the
appealed decision finding the document Exhibit
"C" to be the authentic last will of the deceased
but disallowing it for failure to comply with the
mandatory requirement of Article 806 of the
New Civil Code — that the will must be
acknowledged before a notary public by the
testator and the witnesses.
An examination of the document (Exhibit
"C") shows that the same was acknowledged
before a notary public by the testator but not by
the instrumental witnesses.
Article 806 of the New Civil Code reads
as follows:
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.
We have held heretofore that compliance with
the requirement contained in the above legal
8

provision to the effect that a will must be

Page
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria
Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-
appellant.
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.
The contestant argues that the Court
below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado,
cook and driver, respectively, of the deceased
Apolinaria Ledesma. Both testified that on
March 30, 1950, they saw and heard Vicente
Yap (one of the witnesses to the will) inform
the deceased that he had brought the
"testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria
manifested that she could not go, because she
was not feeling well; and that upon Yap's
insistence that the will had to be signed in the
attorney's office and not elsewhere, the
deceased took the paper and signed it in the
presence of Yap alone, and returned it with the
statement that no one would question it
because the property involved was exclusively
hers.
Our examination of the testimony on
record discloses no grounds for reversing the
trial Court's rejection of the improbable story of
the witnesses. It is squarely contradicted by the
concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon Tabiana,
and his wife Gloria Montinola, who asserted
under oath that the testament was executed by
testatrix and witnesses in the presence of each
other, at the house of the decedent on General
Hughes St., Iloilo City, on March 30, 1950. And
it is highly unlikely, and contrary to usage, that
either Tabiana or Yap should have insisted that
Da. Apolinaria, an infirm lady then over 80
years old, should leave her own house in order
to execute her will, when all three witnesses
could have easily repaired thither for the
purpose. Moreover, the 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 they claimed ability to
recall that word four years later, despite the
fact that the term meant nothing to either. It is
well known that what is to be remembered
must first be rationally conceived and
assimilated (II Moore on Facts, p. 884).
Likewise, Maria Paderogao was positive that
Yap brought the will, and that the deceased
alone signed it, precisely on March 30, 1950;
but she could remember no other date, nor
give satisfactory explanation why that particular
day stuck in her mind. Worse still, Allado
claimed to have heard what allegedly
transpired between Yap and Da. Apolinaria
from the kitchen of the house, that was later
proved to have been separated from the
deceased's quarters, and standing at a much
lower level, so that conversations in the main
building could not be distinctly heard from the
kitchen. Later, on redirect examination, Allado
sought to cure his testimony by claiming that
he was upstairs in a room where the servants
used to eat when he heard Yap converse with
his mistress; but this correction is unavailing,
since it was plainly induced by two highly
leading questions from contestant's counsel
that had been previously ruled out by the trial
Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service
to the deceased.
Upon the other hand, the discrepancies
in the testimony of the instrumental witnesses
urged upon us by the contestant-appellant,
concerning the presence or absence of Aurelio
Montinola at the signing of the testament or of
the codicil, and the identity of the person who
inserted the date therein, are not material and
are largely imaginary, since the witness Mrs.
Tabiana confessed inability to remember all the
9
details of the transaction. Neither are we
Page
impressed by the argument that the use of (Andalis vs. Pulgueras, 59 Phil. 643), or, as the
some Spanish terms in the codicil and Roman maxim puts it, "uno codem die ac
testament (likelegado, partes iguales, plena tempore in eadem loco", and no reversible
propiedad) is proof that its contents were not error was committed by the Court in so holding.
understood by the testatrix, it appearing in It is noteworthy that Article 806 of the new Civil
evidence that those terms are of common use Code does not contain words requiring that the
even in the vernacular, and that the deceased testator and the witnesses should acknowledge
was a woman of wide business interests. the testament on the same day or occasion
The most important variation noted by that it was executed.
the contestants concerns that signing of the The decision admitting the will to
certificate of acknowledgment (in Spanish) probate is affirmed, with costs against
appended to the Codicil in Visayan, Exhibit E. appellant.
Unlike the testament, this codicil was executed
after the enactment of the new Civil Code, and,
therefore, had to be acknowledged before a
notary public (Art. 806). Now, the instrumental
witnesses (who happen to be the same ones
who attested the will of 1950) asserted that
after the codicil had been signed by the
testatrix and the witnesses at the San Pablo
Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion.
On the other hand, Gimotea affirmed that he
did not do so, but brought the codicil to his
office, and signed and sealed it there. The
variance does not necessarily imply conscious
perversion of truth on the part of the witnesses,
but appears rather due to a 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
sign in the presence of each other, all that is
thereafter required is that "every will must be
acknowledged before a notary public by the
testator and the witnesses" (Art. 806); i.e., that
the latter should avow to the certifying officer
the authenticity of their signatures and the
voluntariness of their actions in executing the
testamentary disposition. This was done in the
case before us. The subsequent signing and
sealing by the notary of his certification that the
testament was duly acknowledged by the
participants therein is no part of the
acknowledgment itself nor of the testamentary
act. Hence their separate execution out of the
presence of the testatrix and her witnesses can
10

not be said to violate the rule that testaments

should be completed without interruption
Page
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR,
Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B.
LUGAY, respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of
the Court First Instance of Cebu allowing the
probate of the last will a testament of the late
Valente Z. Cruz. Petitioner-appellant Agapita
N. Cruz, the surviving spouse of the said
decease opposed the allowance of the will
(Exhibit "E"), alleging the will was executed
through fraud, deceit, misrepresentation and
undue influence; that the said instrument was
execute without the testator having been fully
informed of the content thereof, particularly as
to what properties he was disposing and that
the supposed last will and testament was not
executed in accordance with law.
Notwithstanding her objection, the Court
allowed the probate of the said last will and
testament Hence this appeal by certiorari
which was given due course.
The only question presented for
determination, on which the decision of the
case hinges, is whether the supposed last will
and testament of Valente Z. Cruz (Exhibit "E")
was executed in accordance with law,
particularly Articles 805 and 806 of the new
Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to
the will, and the second requiring the testator
and the witnesses to acknowledge the will
before a notary public.
Of the three instrumental witnesses
thereto, namely Deogracias T. Jamaloas Jr.,
Dr. Francisco Pañares and Atty. Angel H.
Teves, Jr., one of them, the last named, is at
the same time the Notary Public before whom
the will was supposed to have been
acknowledged. Reduced to simpler terms, the
question was attested and subscribed by at
least three credible witnesses in the presence
of the testator and of each other, considering
that the three attesting witnesses must appear
before the notary public to acknowledge the
same. As the third witness is the notary public
himself, petitioner argues that the result is that
only two witnesses appeared before the notary
public to acknowledge the will. On the other
hand, private respondent-appellee, Manuel B.
Lugay, who is the supposed executor of the
will, following the reasoning of the trial court,
maintains that there is substantial compliance
with the legal requirement of having at least
three attesting witnesses even if the notary
public acted as one of them, bolstering up his
stand with 57 American Jurisprudence, p. 227
which, insofar as pertinent, reads as follows:
It is said that there are,
practical reasons for upholding a
will as against the purely
technical reason that one of the
witnesses required by law signed
as certifying to an
acknowledgment of the testator's
signature under oath rather than
as attesting the execution of the
instrument.
After weighing the merits of the
conflicting claims of the parties, We are
inclined to sustain that of the appellant that the
last will and testament in question was not
executed in accordance with law. The notary
public before whom the will was acknowledged
cannot be considered as the third instrumental
witness since he cannot acknowledge before
himself his having signed the will. To
acknowledge before means to avow (Javellana
v. Ledesma, 97 Phil. 258, 262; Castro v.
Castro, 100 Phil. 239, 247); to own as genuine,
to assent, to admit; and "before" means in front
or preceding in space or ahead of. (The New
Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New
Standard Dictionary of the English Language,
p. 252; Webster's New International Dictionary
2d. p. 245.) Consequently, if the third witness
were the notary public himself, he would have
to avow assent, or admit his having signed the
will in front of himself. This cannot be done
because he cannot split his personality into two
so that one will appear before the other to
acknowledge his participation in the making of
the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
Furthermore, the function of a notary
public is, among others, to guard against any
illegal or immoral arrangement Balinon v. De
Leon, 50 0. G. 583.) That function would
defeated if the notary public were one of the
attesting instrumental witnesses. For them he
would be interested sustaining the validity of
the will as it directly involves him and the
validity of his own act. It would place him in
inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud
(Report of Code Commission p. 106-107),
would be thwarted.
Admittedly, there are American
precedents holding that notary public may, in
addition, act as a witness to the executive of
the document he has notarized. (Mahilum v.
Court Appeals, 64 0. G. 4017; 17 SCRA 482;
Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a
11
will nonetheless makes him a witness thereon
(Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re
Page
Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill,
269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W.
Merill v. Boal, 132 A. 721;See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities
do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue
herein because the notaries public and
witnesses referred to aforecited cases merely
acted as instrumental, subscribing attesting
witnesses, and not
as acknowledging witnesses. He the notary
public acted not only as attesting witness but
also acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code
which reads:
ART. 806. Every will must
be acknowledged before a notary
public by the testator and the
witnesses. The notary public shall
not be required to retain a copy of
the will or file another with the
office of the Clerk of Court.
[Emphasis supplied]
To allow the notary public to act as third
witness, or one the attesting and
acknowledging witnesses, would have the
effect of having only two attesting witnesses to
the will which would be in contravention of the
provisions of Article 80 be requiring at least
three credible witnesses to act as such and of
Article 806 which requires that the testator and
the required number of witnesses must appear
before the notary public to acknowledge the
will. The result would be, as has been said,
that only two witnesses appeared before the
notary public for or that purpose. In the
circumstances, the law would not be duly in
observed.
FOR ALL THE FOREGOING, the
judgment appealed from is hereby reversed
and the probate of the last will and testament
of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.
Cost against the appellee.
12
Page
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and
LUTGARDA SANTIAGO, respondents.
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 Instance 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 an- d 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 amin, sa
ilalim ng patunay ng mga saksi at
sa kaliwang panig ng lahat at
bawa't dahon ng testamentong
ito.
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 WW 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 Evangeline, Rudyardo Rosa, Andrea,
Marcial, Numancia, Verena an 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 testatrix name, after satisfying
13
the expenses, debts and legacies as
aforementioned.
Page
 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;
3. that, at the time of the alleged
execution of the purported wilt
the decedent lacked
testamentary capacity due to old
age and sickness; and in the
second alternative
4. That the purported WW 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 contentio
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;
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 win 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 wig and testament of
the deceased Isabel Gabriel is
here by 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
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, hence allow
ed probate.
Oppositor Rizalina Gabriel Gonzales
moved for reconsideration 3 of the aforesaid
decision and such motion was opposed 4 by
petitioner-appellant Lutgarda Santiago.
Thereafter. parties submitted their respective
Memoranda, 5 and on August 28, 1973,
respondent Court, Former Special First
Division, by Resolution 6 denied the motion for
reconsideration stating that:
The oppositor-appellee contends
that the preponderance of
evidence shows that the
supposed last wig and testament
of Isabel Gabriel was not
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 reverssing 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 require the respondents
to comment thereon, which comment was filed
on Nov. 14, 1973. Upon consideration of the
allegations, the issues raised and the
14
arguments adduced in the petition, as well as
the Comment 8 of private respondent thereon,
Page
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 Rim Gabriel Goes fried a
Motion for Reconsideration 10 which private
respondent answered by way of her Comment
or Opposition 11 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 witness
II. The Court of Appeals erred in reversing the
finding of the lower court that the preparation
and execution of the win 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".
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 court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt
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 Orobia 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 win 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 and in the more
recent cases of Baptisia vs. Carillo and
CA (L32192, 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:
... 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 tills 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 ...
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
15
recognized exceptions.
Page
 Having laid down the above legal
precepts as Our foundation, We now proceed
to consider petitioner's 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 witnesses were credible
witnesses. She argues that the require. ment 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
wigs with respect to the qualifications of
witnesses.
We find no merit to petitioner's 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 win. 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 806 of this
Code. "Art. 821. 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
trustworthythiness 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 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 petitioner's
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
petitioner's 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
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
16
and credible is satisfactorily supported by the
evidence as found by the respondent Court of
Page
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
testator's name written by some other person
in his presence, and by his express direction,
and attested and subscribed by three or
more credible witnesses in the presence of the
testator and of one another, While the
petitioner submits that 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 grandchild of the
testatrix But the relation of employer and
employee much less the humble 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 Q
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 wig 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.
" emphasissupplied).
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 win, 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:
A 'credible witness is one who is
not is not to testify by mental
incapacity, crime, or other cause.
Historical Soc of Dauphin County
vs. Kelker 74 A. 619, 226 Pix 16,
134 Am. St. Rep. 1010. (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.
(lbid, p. 341).
Expression 'credible witness' in
relation to attestation of wins
means 'competent witness that is,
one competent under the law to
testify to fact of execution of will.
Vernon's 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
17
subscribing the will, the
competency being determined as
Page
 of the date of the execution of the
will and not of the timr it is offered
for probate,Smith vs. Goodell 101
N.E. 255, 256, 258 111. 145.
(Ibid.)
Credible witnesses as used in the
statute relating to wills, means
competent witnesses — that 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 ofVda. 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
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. We, therefore, reject petitioner's
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.
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
win consider and discuss hereinafter. We are
convinced that the appellate court's 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 win and that it was coincidental that Atty.
Paraiso was available at the moment impugns
the finding of the Court of Appeals 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
18
to witness the making of her will, as well as the
testimony of Maria Gimpaya that she was
Page
called by her husband Celso Gimpaya to
proceed to Isabel Gabriel's house which was
nearby and from said house, they left in a car
to the lawyer's office, which testimonies are
recited in the respondent Court's 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 Gimpaya's residence
certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria
Gimpaya's 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, reveals that the spouses were
earlier notified that they would be witnesses to
the execution of Isabel Gabriel's will.
We also agree with the respondent Court's
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 Orobia's 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 Paraiso's 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."
As to the appellate court's 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 ' L 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 received such list from
Isabel Gabriel, We cannot agree with
petitioner's 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
"pangalan ' and "tinitirahan" were left blank
shows beyond cavil that the three attesting
witnesses were all present in the same
occasion merits Our approval because tills
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
19
numbers, dates and places of issuance of said
certificates pertaining to the three (3) witnesses
Page
were personally handwritten by Atty. Paraiso.
Again, this coincides with Atty. Paraiso's even
the sale 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 coadministratrix in the
Intestate Estate of her deceased husband
Eligio Naval. The text of the win 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.
Petitioner's sixth assignment of error is also
bereft of merit. The evidence, both testimonial
and documentary is, according 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 court's
conclusion that Orobia's 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 — day is purely
conjectural. Witness Orobia did not admit
having given piano lessons to the appellant's
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 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 win was
improperly executed, We agree with the
reasoning of the respondent court that:
"Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to
what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the
20
photographer was Benjamin Cifra, Jr., is at
worst a minor mistake attributable to lapse of
Page
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 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 April 15,
1961 , " and We agree with the Court's
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 win 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. In as much 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 Appeals 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
hes 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 court's
unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso;"
that the trial court's 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
21
appointment only with Matilde Orobia to
witness the signing of her will, then it becomes
Page
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 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 latter's 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 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 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. Paraiso's 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 court's 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
evidence — which the trial court itself believed
was unshaken — that 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 Gabriel's 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
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
judgment is based on a misapprehension of
22
facts; (5) when the findings of fact are
conflicting, (6) when the Court of Appeals, in
Page
making its findings, went beyond the issues of Isabel Gabriel insisted that a picture be taken,
the case and the same is contrary to the so a simulated signing was performed during
admissions of both appellant and appellee. which incident Matilde Orobia was not present.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. Petitioner's exacerbation centers on the
31, 1967; Ramos vs. Pepsi Cola Bottling Co., supposed incredibility of the testimonies of the
G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. witnesses for the proponent of the will, their
City of Manila, G.R. No. L-19570; Sept. 14, alleged evasions, inconsistencies and
1967). contradictions. But in the case at bar, the three
Petitioner's insistence is without merit. We hold instrumental witnesses who constitute the best
that the case at bar does not fall within any of evidence of the will making have testified in
the exceptions enumerated above. We likewise favor of the probate of the will. So has the
hold that the findings of fact of the respondent lawyer who prepared it, one learned in the law
appellate court are fully supported by the and long in the practice thereof, who thereafter
evidence on record. The conclusions are fully notarized it. All of them are disinterested
sustained by substantial evidence. We find no witnesses who stand to receive no benefit from
abuse of discretion and We discern no the testament. The signatures of the witnesses
misapprehension of facts. The respondent and the testatrix have been identified on the
Court's findings of fact are not conflicting. will and there is no claim whatsoever and by
Hence, the well-established rule that the anyone, much less the petitioner, that they
decision of the Court of Appeals and its were not genuine. In the last and final analysis,
findings of fact are binding and conclusive and the herein conflict is factual and we go back to
should not be disturbed by this Tribunal and it the rule that the Supreme Court cannot review
must be applied in the case at bar in its full and revise the findings of facts of the
force and effect, without qualification or respondent Court of Appeals.
reservation. The above holding simply WHEREFORE, IN VIEW OF THE
synthesize the resolutions we have heretofore FOREGOING, the judgment appealed from is
made in respect ' to petitioner's previous hereby AFFIRMED, with costs against the
assignments of error and to which We have petitioner.
disagreed and, therefore, rejected. SO ORDERED.
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 Court's 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 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
23

good. The lawyer told her that this cannot be

done because the will was already signed but
Page
G.R. No. L-51546 January 28, 1980
JOSE ANTONIO GABUCAN, petitioner-
appellant,
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G.
VDA. DE YSALINA and NELDA G.
ENCLONAR, respondents-appellees.
Ignacio A. Calingin for appellant.
AQUINO, J.:
This case is about the dismissal of a
petition for the probate of a notarial will on the
ground that it does not bear a thirty-centavo
documentary stamp.
The Court of First Instance of Camiguin
in its "decision" of December 28, 1977 in
Special Proceeding No. 41 for the probate of
the will of the late Rogaciano Gabucan,
dismissed the proceeding (erroneously
characterizes as an "action")
The proceeding was dismissed because
the requisite documentary stamp was not
affixed to the notarial acknowledgment in the
will and, hence, according to respondent
Judge, it was not admissible in evidence, citing
section 238 of the Tax Code, now section 250
of the 1977 Tax Code, which reads:
SEC. 238. Effect of failure
to stamp taxable document. —
An instrument, document, or
paper which is required by law to
be stamped and which has been
signed, issued, accepted, or
transferred without being duly
stamped, shall not be
recorded, nor shall it or any copy
thereof or any record of transfer
of the same be admitted or used
in evidence in any court until the
requisite stamp or stamps shall
have been affixed thereto and
cancelled.
No notary public or other officer
authorized to administer oaths
shall add his jurat or
acknowledgment to any
document subject to
documentary stamp tax unless
the proper documentary stamps
are affixed thereto and cancelled.
The probate court assumed that the
notarial acknowledgment of the said will is
subject to the thirty-centavo documentary
stamp tax fixed in section 225 of the Tax Code,
now section 237 of the 1977 Tax Code.
Respondent Judge refused to
reconsider the dismissal in spite of petitioner's
manifestation that he had already attached the
documentary stamp to the original of the will.
(See Mahilum vs. Court of Appeals, 64 O. G.
4017, 17 SCRA 482, 486.)
The case was brought to this Court by
means of a petition for mandamus to compel
the lower court to allow petitioner's appeal from
its decision. In this Court's resolution of
January 21, 1980 the petition for mandamus
was treated in the interest of substantial and
speedy justice as an appeal under Republic
Act No. 5440 as well as a special civil action of
certiorari under Rule 65 of the Rules of Court.
We hold that the lower court manifestly
erred in declaring that, because no
documentary stamp was affixed to the will,
there was "no will and testament to probate"
and, consequently, the alleged "action must of
necessity be dismissed".
What the probate court should have
done was to require the petitioner or proponent
to affix the requisite thirty-centavo
documentary stamp to the notarial
acknowledgment of the will which is the taxable
portion of that document.
That procedure may be implied from the
provision of section 238 that the non-
admissibility of the document, which does not
bear the requisite documentary stamp, subsists
only "until the requisite stamp or stamps shall
have been affixed thereto and cancelled."
Thus, it was held that the documentary
stamp may be affixed at the time the taxable
document is presented in evidence (Del
Castillo vs. Madrilena 49 Phil. 749). If the
promissory note does not bear a documentary
stamp, the court should have allowed plaintiff's
tender of a stamp to supply the deficiency.
(Rodriguez vs. Martinez, 5 Phil. 67, 71. Note
the holding in Azarraga vs. Rodriguez, 9 Phil.
637, that the lack of the documentary stamp on
a document does not invalidate such
document. See Cia. General de Tabacos vs.
Jeanjaquet 12 Phil. 195, 201-2 and Delgado
and Figueroa vs. Amenabar 16 Phil. 403, 405-
6.)
WHEREFORE, the lower court's
dismissal of the petition for probate is reversed
and set aside. It is directed to decide the case
on the merits in the light of the parties'
evidence. No costs.
SO ORDERED.
24
Page
 ARTICLE 808
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.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated
11 April 1986 1 of the First Civil Cases Division
of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order
dated 27 June 1983 2 of the Regional Trial
Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament 3 with
codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido
Alvarado executed a 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.
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 eight-paged 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, Brigido's 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 testator's
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 testator's death on 3
January 1979 by private respondent as
executor with the Court of First Instance, now
Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, in turn, 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 and threats; that it
was procured by undue and improper pressure
and influence on the part of the beneficiary
who stands to get the lion's share of the
testator's 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 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 was
executed; that since the reading required by
Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's 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 purpose of Art,
808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-
reading 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
25
was only of "counting fingers at three (3) feet"
by reason of the glaucoma which he had been
Page
suffering from for several years and even prior
to his first consultation with an eye specialist
on
14 December 1977.
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 layman's 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
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 respondent's 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
"blurred" 12 vision making it necessary for
private respondent to do the actual reading for
him.
The following pronouncement in Garcia
vs. Vasquez 13 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 . . .
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 confortably
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 compliance and that the single
reading suffices for purposes of the law. On the
other hand, petitioner maintains that the only
valid 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 latter's will and codicil should
have been disallowed.
We sustain private respondent's 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
testator's will and codicil aloud in the presence
of the testator, his three instrumental
witnesses, and the notary public. Prior and
26
subsequent thereto, the testator affirmed, upon
being asked, that the contents read
Page
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 testator's
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 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 testator's physician) asked
the testator whether the contents of the
document 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 testator's will. 17
As a final word to convince petitioner of the
propriety of the trial court's 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 testator's will,
must be disregarded (emphasis
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 fro 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.
Garcia vs Vasquez
27
Page
 ARTICLE 809
ALVARADO VS GAVIOLA
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.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.
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 to another. On May
29, 1980, the testator passed away before his
petition could finally be heard by the probate
court. 3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his
appointment as special administrator of the
testator's estate, the estimated value of which
was P24,000.00, and he was so appointed by
the probate court in its order of March 6,
1981. 4
Thereafter, herein petitioners, claiming to be
nephews and nieces of the testator, instituted a
second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R,
before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein
petitioners had their said petition intestate
proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the
Court of First Instance of Cebu and opposed
thereat the probate of the Testator's will and
the appointment of a special administrator for
his estate. 5
Benoni Cabrera died on February 8, 1982
hence the probate court, now known as Branch
XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on
July 20, 1983, it issued an order for the return
of the records of Special Proceeding No. 3965-
R to the archives since the testate proceeding
for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII
of the Regional Trial Court of Cebu where it
remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special
Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the
allowance of the testator's will on the ground
that on the alleged date of its execution, the
testator was already in the poor state of health
such that he could not have possibly executed
the same. Petitioners likewise reiterated the
issue as to the genuineness of the signature of
the testator therein. 7
On the other hand, one of the attesting
witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the
testator executed the will in question in their
presence while he was of sound and disposing
mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good
health and was not unduly influenced in any
way in the execution of his will. Labuca also
testified that he and the other witnesses
attested and signed the will in the presence of
the testator and of each other. The other two
attesting witnesses were not presented in the
probate hearing as the had died by then. 8
28
On April 5, 1988, the probate court rendered a
decision declaring the will in question as the
Page
last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of
the two witnesses of the
oppositors cannot overcome the
positive testimonies of Atty.
Filoteo Manigos and Cipriano
Labuca who clearly told the Court
that indeed Mateo Caballero
executed the Last Will and
Testament now marked Exhibit
"C" on December 5, 1978.
Moreover, the fact that it was
Mateo Caballero who initiated the
probate of his Will during his
lifetime when he caused the filing
of the original petition now
marked Exhibit "D" clearly
underscores the fact that this was
indeed his Last Will. At the start,
counsel for the oppositors
manifested that he would want
the signature of Mateo Caballero
in Exhibit "C" examined by a
handwriting expert of the NBI but
it would seem that despite their
avowal and intention for the
examination of this signature of
Mateo Caballero in Exhibit "C",
nothing came out of it because
they abandoned the idea and
instead presented Aurea
Caballero and Helen Caballero
Campo as witnesses for the
oppositors.
All told, it is the finding of this
Court that Exhibit "C" is the Last
Will and Testament of Mateo
Caballero and that it was
executed in accordance with all
the requisites of the law. 9
Undaunted by the said judgment of the probate
court, petitioners elevated the case in the Court
of Appeals in CA-G.R. CV No. 19669. They
asserted therein that the will in question is null
and void for the reason that its attestation
clause is fatally defective since it fails to
specifically state that the instrumental
witnesses to the will witnessed the testator
signing the will in their presence and that they
also signed the will and all the pages thereof in
the presence of the testator and of one
another.
On October 15, 1991, respondent court
promulgated its decision 10 affirming that of the
trial court, and ruling that the attestation clause
in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code,
thus:
The question therefore is whether
the attestation clause in question
may be considered as having
substantialy complied with the
requirements of Art. 805 of the
Civil Code. What appears in the
attestation clause which the
oppositors claim to be defective
is "we do certify that the
testament was read by him and
the attestator, Mateo Caballero,
has published unto us the
foregoing will consisting of
THREE PAGES, including the
acknowledgment, each page
numbered correlatively in letters
of the upper part of each page,
as his Last Will and
Testament, and he has signed
the same and every page thereof,
on the spaces provided for his
signature and on the left hand
margin in the presence of the
said testator and in the presence
of each and all of us (emphasis
supplied).
To our thinking, this is sufficient
compliance and no evidence
need be presented to indicate the
meaning that the said will was
signed by the testator and by
them (the witnesses) in the
presence of all of them and of
one another. Or as the language
of the law would have it that the
testator signed the will "in the
presence of the instrumental
witnesses, and that the latter
witnessed and signed the will and
all the pages thereof in the
presence of the testator and of
one another." If not completely or
ideally perfect in accordance with
the wordings of Art. 805 but (sic)
the phrase as formulated is in
substantial compliance with the
requirement of the law." 11
Petitioners moved for the reconsideration of
the said ruling of respondent court, but the
same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent
court has ruled upon said issue in a manner
not in accord with the law and settled
jurisprudence on the matter and are now
questioning once more, on the same ground as
that raised before respondent court, the validity
of the attestation clause in the last will of Mateo
Caballero.
We find the present petition to be meritorious,
as we shall shortly hereafter, after some
29
prefatory observations which we feel should be
Page
made in aid of the rationale for our resolution of
the controversy.
1. A will has been defined as a species of
conveyance whereby a person is permitted,
with the formalities prescribed by law, to
control to a certain degree the disposition of his
estate after his death. 13 Under the Civil Code,
there are two kinds of wills which a testator
may execute. 14 the first kind is the ordinary or
attested will, the execution of which is
governed by Articles 804 to 809 of the Code.
Article 805 requires that:
Art. 805. Every will, other than a
holographic will, must be
subscribed at the end thereof by
the testator himself or by the
testator's name written by some
other person in his presence, and
by his express direction, and
attested and subscribed by three
or more credible witnesses in the
presence of the testator and of
one another.
The testator or the person
requested by him to write his
name and the instrumental
witnesses of the will, shall also
sign, as aforesaid, each and
every page thereof, except the
last, on the left margin, and all
the pages shall be numbered
correlatively in letters placed on
the upper part of each page.
The attestation should state the
number of pages used upon
which the will is written, and the
fact that the testator signed the
will and every page thereof, or
caused some other person to
write his name, under his express
direction, in the presence of the
instrumental witnesses, and that
the latter witnessed and signed
the will and all the pages thereof
in the presence of the testator
and of one another.
If the attestation clause is in a
language not known to the
witness, it shall be interpreted to
them.
In addition, the ordinary will must be
acknowledged before a notary public by a
testator and the attesting witness.15 hence it is
likewise known as notarial will. Where the
attestator is deaf or deaf-mute, Article 807
requires that he must personally read the will, if
able to do so. Otherwise, he should designate
two persons who would read the will and
communicate its contents to him in a
practicable manner. On the other hand, if the
testator is blind, the will should be read to him
twice; once, by anyone of the witnesses
thereto, and then again, by the notary public
before whom it is acknowledged. 16
The other kind of will is the holographic will,
which Article 810 defines as one that is entirely
written, dated, and signed by the testator
himself. This kind of will, unlike the ordinary
type, requires no attestation by witnesses. A
common requirement in both kinds of will is
that they should be in writing and must have
been executed in a language or dialect known
to the testator. 17
However, in the case of an ordinary or attested
will, its attestation clause need not be written in
a language or dialect known to the testator
since it does not form part of the testamentary
disposition. Furthermore, the language used in
the attestation clause likewise need not even
be known to the attesting witnesses. 18 The last
paragraph of Article 805 merely requires that,
in such a case, the attestation clause shall be
interpreted to said witnesses.
An attestation clause refers to that part of an
ordinary will whereby the attesting witnesses
certify that the instrument has been executed
before them and to the manner of the
execution the same. 19 It is a separate
memorandum or record of the facts
surrounding the conduct of execution and once
signed by the witnesses, it gives affirmation to
the fact that compliance with the essential
formalities required by law has been
observed. 20 It is made for the purpose of
preserving in a permanent form a record of the
facts that attended the execution of a particular
will, so that in case of failure of the memory of
the attesting witnesses, or other casualty, such
facts may still be proved. 21
Under the third paragraph of Article 805, such
a clause, the complete lack of which would
result in the invalidity of the will, 22 should state
(1) the number of the pages used upon which
the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and
every page thereof in the presence of the
attesting witnesses; and (3) that theattesting
witnesses witnessed the signing by the testator
of the will and all its
pages, and that said witnesses also signed the
will and every page thereof in the presence of
the testator and of one another.
The purpose of the law in requiring the clause
to state the number of pages on which the will
is written is to safeguard against possible
interpolation or omission of one or some of its
pages and to prevent any increase or decrease
in the pages; 23 whereas the subscription of the
signature of the testator and the attesting
witnesses is made for the purpose of
30
authentication and identification, and thus
indicates that the will is the very same
Page
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, provide strong legal guaranties for
the due execution of a will and to insure the
authenticity thereof. 26 As it appertains only to
the witnesses and not to the testator, it need
be signed only by them. 27 Where it is left
unsigned, it would result in the invalidation of
the will as it would be possible and easy to add
the clause on a subsequent occasion in the
absence of the testator and its witnesses. 28
In its report, the Code Commission commented
on the reasons of the law for requiring the
formalities to be followed in the execution of
wills, in the following manner:
The underlying and fundamental
objectives permeating the
provisions on the law on wills in
this Project consists in the
liberalization of the manner of
their execution with the end in
view of giving the testator more
freedom in expressing his last
wishes, but with sufficient
safeguards and restrictions to
prevent the commission of fraud
and the exercise of undue and
improper pressure and influence
upon the testator.
This objective is in accord with
the modern tendency with
respect to the formalities in the
execution of wills. . . . 29
2. An examination of the last will and testament
of Mateo Caballero shows that it is comprised
of three sheets all of which have been
numbered correlatively, with the left margin of
each page thereof bearing the respective
signatures of the testator and the three
attesting witnesses. The part of the will
containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and
is signed at the foot thereof by the testator. The
attestation clause in question, on the other
hand, is recited in the English language and is
likewise signed at the end thereof by the three
attesting witnesses hereto. 30 Since it is the
proverbial bone of contention, we reproduce it
again for facility of reference:
We, the undersigned attesting
Witnesses, whose Residences
and postal addresses appear on
the Opposite of our respective
names, we do hereby certify that
the Testament was read by him
and the testator, MATEO
CABALLERO; has published unto
us the foregoing Will consisting of
THREE PAGES, including the
Acknowledgment, each page
numbered correlatively in the
letters on the upper part of each
page, as his Last Will and
Testament and he has the same
and every page thereof, on the
spaces provided for his signature
and on the left hand margin, in
the presence of the said testator
and in the presence of each and
all of us.
It will be noted that Article 805 requires that the
witness should both attest and subscribe to the
will in the presence of the testator and of one
another. "Attestation" and "subscription" differ
in meaning. Attestation is the act of senses,
while subscription is the act of the hand. The
former is mental, the latter mechanical, and to
attest a will is to know that it was published as
such, and to certify the facts required to
constitute an actual and legal publication; but
to subscribe a paper published as a will is only
to write on the same paper the names of the
witnesses, for the sole purpose of
31
identification.
In Taboada vs. Rizal, 32 we clarified that
attestation consists in witnessing the testator's
execution of the will in order to see and take
note mentally that those things are done which
the statute requires for the execution of a will
and that the signature of the testator exists as
a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same
paper for the purpose of identification of such
paper as the will which was executed by the
testator. As it involves a mental act, there
would be no means, therefore, of ascertaining
by a physical examination of the will whether
the witnesses had indeed signed in the
presence of the testator and of each other
unless this is substantially expressed in the
attestation.
It is contended by petitioners that the
aforequoted attestation clause, in
contravention of the express requirements of
the third paragraph of Article 805 of the Civil
Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the
testator sign the will and all its pages in their
presence and that they, the witnesses, likewise
signed the will and every page thereof in the
presence of the testator and of each other. We
agree.
What is fairly apparent upon a careful reading
of the attestation clause herein assailed is the
fact that while it recites that the testator indeed
signed the will and all its pages in the presence
31
of the three attesting witnesses and states as
well the number of pages that were used, the
Page
same does not expressly state therein the
circumstance that said witnesses subscribed
their respective signatures to the will in the
presence of the testator and of each other.
The phrase "and he has signed the same and
every page thereof, on the spaces provided for
his signature and on the left hand margin,"
obviously refers to the testator and not the
instrumental witnesses as it is immediately
preceded by the words "as his Last Will and
Testament." On the other hand, although the
words "in the presence of the testator and in
the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted
as referring only to the testator signing in the
presence of the witnesses since said phrase
immediately follows the words "he has signed
the same and every page thereof, on the
spaces provided for his signature and on the
left hand margin." What is then clearly lacking,
in the final logical analysis , is the statement
that the witnesses signed the will and every
page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of
that statement required by law is a fatal defect
or imperfection which must necessarily result in
the disallowance of the will that is here sought
to be admitted to probate. Petitioners are
correct in pointing out that the aforestated
defect in the attestation clause obviously
cannot be characterized as merely involving
the form of the will or the language used
therein which would warrant the application of
the substantial compliance rule, as
contemplated in the pertinent provision thereon
in the Civil Code, to wit:
Art. 809. In the absence of bad
faith, forgery, or fraud, or undue
and improper pressure and
influence, defects and
imperfections in the form of
attestation or in the
language used therein shall not
render the will invalid if it is not
proved that the will was in fact
executed and attested in
substantial compliance with all
the requirements of article 805"
(Emphasis supplied.)
While it may be true that the attestation clause
is indeed subscribed at the end thereof and at
the left margin of each page by the three
attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said
witness affixed their respective signatures in
the presence of the testator and of each other
since, as petitioners correctly observed, the
presence of said signatures only establishes
the fact that it was indeed signed, but it does
not prove that the attesting witnesses did
subscribe to the will in the presence of the
testator and of each other. The execution of a
will is supposed to be one act so that where
the testator and the witnesses sign on various
days or occasions and in various combinations,
the will cannot be stamped with the imprimatur
of effectivity. 33
We believe that the further comment of former
Justice J.B.L. Reyes 34 regarding Article 809,
wherein he urged caution in the application of
the substantial compliance rule therein, is
correct and should be applied in the case
under consideration, as well as to future cases
with similar questions:
. . . The rule must be limited to
disregarding those defects that
can be supplied by an
examination of the will itself:
whether all the pages are
consecutively numbered; whether
the signatures appear in each
and every page; whether the
subscribing witnesses are three
or the will was notarized. All
theses are facts that the will itself
can reveal, and defects or even
omissions concerning them in the
attestation clause can be safely
disregarded. But the total number
of pages, and whether all
persons required to sign did so in
the presence of each other must
substantially appear in the
attestation clause, being the only
check against perjury in the
probate proceedings. (Emphasis
ours.)
3. We stress once more that under Article 809,
the defects and imperfections must only be
with respect to the form of the attestation or the
language employed therein. Such defects or
imperfections would not render a will invalid
should it be proved that the will was really
executed and attested in compliance with
Article 805. In this regard, however, the
manner of proving the due execution and
attestation has been held to be limited to
merely an examination of the will itself without
resorting to evidence aliunde, whether oral or
written.
The foregoing considerations do not apply
where the attestation clause totally omits the
fact that the attesting witnesses signed each
and every page of the will in the presence of
the testator and of each other. 35 In such a
situation, the defect is not only in the form or
language of the attestation clause but the total
absence of a specific element required by
32
Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the
Page
defect complained of in the present case since
there is no plausible way by which we can read
into the questioned attestation clause
statement, or an implication thereof, that the
attesting witness did actually bear witness to
the signing by the testator of the will and all of
its pages and that said instrumental witnesses
also signed the will and every page thereof in
the presence of the testator and of one
another.
Furthermore, the rule on substantial
compliance in Article 809 cannot be revoked or
relied on by respondents since it presupposes
that the defects in the attestation clause can be
cured or supplied by the text of the will or a
consideration of matters apparent therefrom
which would provide the data not expressed in
the attestation clause or from which it may
necessarily be gleaned or clearly inferred that
the acts not stated in the omitted textual
requirements were actually complied within the
execution of the will. In other words, defects
must be remedied by intrinsic evidence
supplied by the will itself.
In the case at bar, contrarily, proof of the acts
required to have been performed by the
attesting witnesses can be supplied by only
extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no
basis whatsoever from with such facts may be
plausibly deduced. What private respondent
insists on are the testimonies of his witnesses
alleging that they saw the compliance with
such requirements by the instrumental
witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove
the same and would accordingly be doing by
the indirection what in law he cannot do
directly.
4. Prior to the advent of the Civil Code on
August 30, 1950, there was a divergence of
views as to which manner of interpretation
should be followed in resolving issues
centering on compliance with the legal
formalities required in the execution of wills.
The formal requirements were at that time
embodied primarily in Section 618 of Act No.
190, the Code of Civil Procedure. Said section
was later amended by Act No. 2645, but the
provisions respecting said formalities found in
Act. No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil
Code.
One view advance the liberal or substantial
compliance rule. This was first laid down in the
case of Abangan vs. Abangan, 36 where it was
held that the object of the solemnities
surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid
substitution of wills and testaments and to
guarantee their truth and authenticity.
Therefore, the laws on this subject should be
interpreted in such a way as to attain these
primordial ends. Nonetheless, it was also
emphasized that one must not lose sight of the
fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a
will, hence when an interpretation already
given assures such ends, any other
interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will,
must be disregarded. The subsequent cases
of Avera vs. Garcia, 37 Aldaba vs.
38 39
Roque, Unson vs. Abella, 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. 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.,
33
152). In its last analysis, our task
is to contrast and, if possible,
Page
conciliate the last two decisions
cited by opposing counsel,
namely, those of Sano vs.
Quintana,supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs.
Quintana, supra, it was decided
that an attestation clause which
does not recite that the witnesses
signed the will and each and
every page thereof on the left
margin in the presence of the
testator is defective, and such a
defect annuls the will. The case
of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve
vs. Mojal and Aguilar, supra, was
not mentioned. In contrast, is the
decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was
held that the attestation clause
must estate the fact that the
testator and the witnesses
reciprocally saw the signing of
the will, for such an act cannot be
proved by the mere exhibition of
the will, if it is not stated therein.
It was also held that the fact that
the testator and the witnesses
signed each and every page of
the will can be proved also by the
mere examination of the
signatures appearing on the
document itself, and the omission
to state such evident facts does
not invalidate the will.
It is a habit of courts to reaffirm or
distinguish previous cases;
seldom do they admit
inconsistency in doctrine. Yet
here, unless aided impossible to
reconcile the Mojal and Quintana
decisions. They are
fundamentally at variance. If we
rely on one, we affirm. If we rely
on the other, we reverse.
In resolving this puzzling question
of authority, three outstanding
points may be mentioned. In the
first place, the Mojal, decision
was concurred in by only four
members of the court, less than a
majority, with two strong
dissenting opinions; the Quintana
decision was concurred in by
seven members of the court, a
clear majority, with one formal
dissent. In the second place, the
Mojal decision was promulgated
in December, 1924, while the
Quintana decision was
promulgated in December, 1925;
the Quintana decision was thus
subsequent in point of time. And
in the third place, the Quintana
decision is believed more nearly
to conform to the applicable
provisions of the law.
The right to dispose of property
by will is governed entirely by
statute. The law of the case is
here found in section 61 of the
Code of Civil Procedure as
amended by Act No. 2645, and in
section 634 of the same Code, as
unamended. It is in part provided
in section 61, as amended that
"No will . . .shall be valid . .
. unless . . .." It is further provided
in the same section that "The
attestation shallstate the number
of sheets or pages used, upon
which the will is written, and the
fact that the testator signed the
will and every page thereof, or
caused some other person to
write his name, under his express
direction, in the presence of three
witnesses, and the latter
witnessed and signed the will and
all pages thereof in the presence
of the testator and of each other."
Codal section 634 provides that
"The will shall be disallowed in
either of the following case: 1.
If not executed and attested as in
this Act provided." The law not
alone carefully makes use of the
imperative, but cautiously goes
further and makes use of the
negative, to enforce legislative
intention. It is not within the
province of the courts to
disregard the legislative purpose
so emphatically and clearly
expressed.
We adopt and reaffirm the
decision in the case of Sano vs.
Quintana, supra, and, to the
extent necessary, modify the
decision in the case of Nayve vs.
Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory
pronouncement, there were decisions of the
Court that once more appeared to revive the
seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs.
Morata, 49Rodriguez vs. Alcala, 50 Enchevarria
vs. Sarmiento, 51 and Testate Estate of
34
52
Toray went the way of the ruling as restated
in Gumban. But De Gala vs. Gonzales, et
Page
al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs.
56 57
Panganiban, Rodriguez vs. Yap, Grey vs.
Fabia, 58 Leynez vs. Leynez, 59 Martir vs.
Martir, 60 Alcala vs. De Villa,61 Sabado vs.
Fernandez, 62 Mendoza vs.
63 64
Pilapil, and Lopez vs. Liboro, veered away
from the strict interpretation rule and
established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a
conflicting welter of views and of the
undeniable inclination towards a liberal
construction, recommended the codification of
the substantial compliance rule, as it believed
this rule to be in accord with the modern
tendency to give a liberal approach to the
interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with
this explanation of the Code Commission:
The present law provides for only
one form of executing a will, and
that is, in accordance with the
formalities prescribed by Section
618 of the Code of Civil
Procedure as amended by Act
No. 2645. The Supreme Court of
the Philippines had previously
upheld the strict compliance with
the legal formalities and had even
said that the provisions of Section
618 of the Code of Civil
Procedure, as amended
regarding the contents of the
attestation clause were
mandatory, and non-compliance
therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily
restrained the freedom of the
testator in disposing of his
property.
However, in recent years the
Supreme Court changed its
attitude and has become more
liberal in the interpretation of the
formalities in the execution of
wills. This liberal view is
enunciated in the cases
ofRodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October
18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No.
47351, April 18, 1941.
In the above mentioned decisions
of our Supreme Court, it has
practically gone back to the
original provisions of Section 618
of the Code of Civil Procedure
before its amendment by Act No.
2645 in the year 1916. To turn
this attitude into a legislative
declaration and to attain the main
objective of the proposed Code in
the liberalization of the manner of
executing wills, article 829 of the
Project is recommended, which
reads:
"Art. 829. In the
absence of bad
faith, forgery, or
fraud, or undue and
improper pressure
and influence,
defects and
imperfections in the
form of attestation
or in the language
used therein shall
not render the will
invalid if it is proved
that the will was in
fact executed and
attested in
substantial
compliance with all
the requirements of
article 829."65
The so-called liberal rule, the Court said in Gil
vs. Murciano, 66 "does not offer any puzzle or
difficulty, nor does it open the door to serious
consequences. The later decisions do tell us
when and where to stop; they draw the dividing
line with precision. They do not allow
evidence aliunde to fill a void in any part of the
document or supply missing details that should
appear in the will itself. They only permit a
probe into the will, an exploration into its
confines, to ascertain its meaning or to
determine the existence or absence of the
requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to
banish any fear of dire results."
It may thus be stated that the rule, as it now
stands, is that omissions which can be
supplied by an examination of the will itself,
without the need of resorting to extrinsic
evidence, will not be fatal and,
correspondingly, would not obstruct the
allowance to probate of the will being assailed.
However, those omissions which cannot be
supplied except by evidence aliunde would
result in the invalidation of the attestation
clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby
GRANTED and the impugned decision of
respondent court is hereby REVERSED and
SET ASIDE. The court a quo is accordingly
35
directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the
Page
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.

36
Page
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO.
JESUSA CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-
appellants.
Clouduallo Lucero and Vicente C. Santos for
appellants.
Marciano Chitongco and Zosimo B. Echanova
for appellee.
PARAS, C.J.:
This is an appeal interposed by the oppositors
from a decision of the Court of First Instance of
Samar, admitting to probate the will allegedly
executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14,
1949.
The main objection insisted upon by the
appellant in that the will is fatally defective,
because its attestation clause is not signed by
the attesting witnesses. There is no question
that the signatures of the three witnesses to
the will do not appear at the bottom of the
attestation clause, although the page
containing the same is signed by the witnesses
on the left-hand margin.
We are of the opinion that the position taken by
the appellant is correct. The attestation clause
is 'a memorandum of the facts attending the
execution of the will' required by law to be
made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an
act of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that
signatures of the three witnesses on the left-
hand margin conform substantially to the law
and may be deemed as their signatures to the
attestation clause. This is untenable, because
said signatures are in compliance with the legal
mandate that the will be signed on the left-
hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a
subsequent occasion and in the absence of the
testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed
and the probate of the will in question denied.
So ordered with costs against the petitioner
and appellee.
Pablo, Bengzon, Montemayor, Jugo and
Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has
substantially complied with the formalities of
the law and, therefore, should be admitted to
probate . It appears that the will was signed by
the testator and was attested by three
instrumental witnesses, not only at the bottom,
but also on the left-hand margin. The
witnesses testified not only that the will was
signed by the testator in their presence and in
the presence of each other but also that when
they did so, the attestation clause was already
written thereon. Their testimony has not been
contradicted. The only objection set up by the
oppositors to the validity of the will is the fact
that the signatures of the instrumental
witnesses do not appear immediately after the
attestation clause.
This objection is too technical to be
entertained. In the case of Abangan vs.
Abangan, (40 Phil., 476), this court said that
when the testamentary dispositions "are wholly
written on only one sheet signed at the bottom
by the testator and three witnesses (as the
instant case),their signatures on the left margin
of said sheet would be completely
purposeless." In such a case, the court said,
the requirement of the signatures on the left
hand margin was not necessary because the
purpose of the law — which is to avoid the
substitution of any of the sheets of the will,
thereby changing the testator's dispositions —
has already been accomplished. We may say
the same thing in connection with the will under
consideration because while the three
instrumental witnesses did not sign
immediately by the majority that it may have
been only added on a subsequent occasion
and not at the uncontradicted testimony of said
witnesses to the effect that such attestation
clause was already written in the will when the
same was signed.
The following observation made by this court in
the Abangan case is very fitting:
The object of the solemnities
surrounding the execution of wills is to
close the door against bad faith and
fraud to avoid substitution of wills and
testaments and to guaranty their truth
and authenticity. Therefore the laws on
this subject should be interpreted in
such a way as to attain these primordial
ends. But, on the other hand, also one
must not lose sight of the fact that it i not
the object of the law to restrain and
curtail the exercise of the right to make
a will. So when an interpretation already
given assures such ends, any other
interpretation already given assures
such ends, any other interpretation
whatsoever, that adds nothing but
demands more requisites entirely
unnecessary useless and frustrative of
37
the testator's last will, must be
disregarded. (supra)
Page
We should not also overlook the liberal trend of
the New Civil Code in the matter of
interpretation of wills, the purpose of which, in
case of doubt, is to give such interpretation that
would have the effect of preventing intestacy
(article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in
question should be admitted to probate.
Feria, J., concurs.

TUASON, J., dissenting:

I cuncur in Mr. Justice Bautista's dissenting
opinion and may add that the majority decision
erroneously sets down as a fact that the
attestation clause was no signed when the
witnesses signatures appear on the left margin
and the real and only question is whether such
signatures are legally sufficient.
The only answers, in our humble opinion, is
yes. The law on wills does not provide that the
attesting witness should sign the clause at the
bottom. In the absence of such provision, there
is no reason why signatures on the margin are
not good. A letter is not any the less the
writter's simply because it was signed, not at
the conventional place but on the side or on
top.

38
Page
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR
THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of
Court of First Instance of Southern Leyte,
(Branch III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued
by the Court of First Instance of Southern
Leyte, Branch III, in Special Proceedings No.
R-1713, entitled "In the Matter of the Petition
for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner",
which denied the probate of the will, the motion
for reconsideration and the motion for
appointment of a special administrator.
In the petition for probate filed with the
respondent court, the petitioner attached the
alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-
Visayan dialect, the will consists of two pages.
The first page contains the entire testamentary
dispositions and is signed at the end or bottom
of the page by the testatrix alone and at the left
hand margin by the three (3) instrumental
witnesses. The second page which contains
the attestation clause and the acknowledgment
is signed at the end of the attestation clause by
the three (3) attesting witnesses and at the left
hand margin by the testatrix.
Since no opposition was filed after the
petitioner's compliance with the requirement of
publication, the trial court commissioned the
branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang,
one of the subscribing witnesses to the will,
who testified on its genuineness and due
execution.
The trial court, thru then Presiding Judge
Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea
Perez for want of a formality in its execution. In
the same order, the petitioner was also
required to submit the names of the intestate
heirs with their corresponding addresses so
that they could be properly notified and could
intervene in the summary settlement of the
estate.
Instead of complying with the order of the trial
court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period
within which to deliberate on any step to be
taken as a result of the disallowance of the will.
He also asked that the ten-day period required
by the court to submit the names of intestate
heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration
of the order denying the probate of the will.
However, the motion together with the previous
manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian
due to his transfer to his new station at Pasig,
Rizal. The said motions or incidents were still
pending resolution when respondent Judge
Avelino S. Rosal assumed the position of
presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the
motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In
the same order of denial, the motion for the
appointment of special administrator was
likewise denied because of the petitioner's
failure to comply with the order requiring him to
submit the names of' the intestate heirs and
their addresses.
The petitioner decided to file the present
petition.
For the validity of a formal notarial will, does
Article 805 of the Civil Code require that the
testatrix and all the three instrumental and
attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one
another?
Article 805 of the Civil Code provides:
Every will, other than a
holographic will, must be
subscribed at the end thereof by
the testator himself or by the
testator's name written by some
other person in his presence, and
by his express direction, and
attested and subscribed by three
or more credible witnesses in the
presence of the testator and of
one another.
The testator or the person
requested by him to write his
name and the instrumental
witnesses of the will, shall also
sign, as aforesaid, each and
every page thereof, except the
last, on the left margin, and all
the pages shall be numbered
correlatively in letters placed on
the upper part of each page.
The attestation shall state the
number of pages used upon
which the will is written, and the
fact that the testator signed the
will and every page thereof, or
caused some other person to
39
write his name, under his express
direction, in the presence of the
Page
 instrumental witnesses, and that
the lacier witnesses and signed
the will and the pages thereof in
the presence of the testator and
of one another.
If the attestation clause is in a
language not known to the
witnesses, it shall be interpreted
to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-
quoted provision of law to require that, for a
notarial will to be valid, it is not enough that
only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at
the same place or at the end, in the presence
of the testatrix and of one another because the
attesting witnesses to a will attest not merely
the will itself but also the signature of the
testator. It is not sufficient compliance to sign
the page, where the end of the will is found, at
the left hand margin of that page.
On the other hand, the petitioner maintains that
Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute
necessity for the extrinsic validity of the wig
that the signatures of the subscribing
witnesses should be specifically located at the
end of the wig after the signature of the
testatrix. He contends that it would be absurd
that the legislature intended to place so heavy
an import on the space or particular location
where the signatures are to be found as long
as this space or particular location wherein the
signatures are found is consistent with good
faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil
Code, the will must be subscribed or signed at
its end by the testator himself or by the
testator's name written by another person in his
presence, and by his express direction, and
attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation
consists in witnessing the testator's execution
of the will in order to see and take note
mentally that those things are, done which the
statute requires for the execution of a will and
that the signature of the testator exists as a
fact. On the other hand, subscription is the
signing of the witnesses' names upon the same
paper for the purpose of Identification of such
paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is
concerned, it is our considered view that the
will in this case was subscribed in a manner
which fully satisfies the purpose of
Identification.
The signatures of the instrumental witnesses
on the left margin of the first page of the will
attested not only to the genuineness of the
signature of the testatrix but also the due
execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be
desirable, unsubstantial departure from the
usual forms should be ignored, especially
where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444,
449).
The law is to be liberally construed, "the
underlying and fundamental objective
permeating the provisions on the law on wills in
this project consists in the liberalization of the
manner of their execution with the end in view
of giving the testator more freedom in
expressing his last wishes but with sufficient
safeguards and restrictions to prevent the
commission of fraud and the exercise of undue
and improper pressure and influence upon the
testator. This objective is in accord with the
modern tendency in respect to the formalities
in the execution of a will" (Report of the Code
commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian
stated in his questioned order that were not for
the defect in the place of signatures of the
witnesses, he would have found the testimony
sufficient to establish the validity of the will.
The objects of attestation and of subscription
were fully met and satisfied in the present case
when the instrumental witnesses signed at the
left margin of the sole page which contains all
the testamentary dispositions, especially so
when the will was properly Identified by
subscribing witness Vicente Timkang to be the
same will executed by the testatrix. There was
no question of fraud or substitution behind the
questioned order.
We have examined the will in question and
noticed that the attestation clause failed to
state the number of pages used in writing the
will. This would have been a fatal defect were it
not for the fact that, in this case, it is
discernible from the entire wig that it is really
and actually composed of only two pages duly
signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page
which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end
or at the bottom while the instrumental
witnesses signed at the left margin. The other
page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself
40
states that "This Last Will and Testament
consists of two pages including this page".
Page
In Singson v. Florentino, et al. (92 Phil. 161,
164), this Court made the following
observations with respect to the purpose of the
requirement that the attestation clause must
state the number of pages used:
The law referred to is article 618
of the Code of Civil Procedure, as
amended by Act No. 2645, which
requires that the attestation
clause shall state the number of
pages or sheets upon which the
win is written, which requirement
has been held to be mandatory
as an effective safeguard against
the possibility of interpolation or
omission of some of the pages of
the will to the prejudice of the
heirs to whom the property is
intended to be bequeathed (In re
will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43
Phil. 405; Gumban vs. Gorecho,
50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611).
The ratio decidendi of these
cases seems to be that the
attestation clause must contain a
statement of the number of
sheets or pages composing the
will and that if this is missing or is
omitted, it will have the effect of
invalidating the will if the
deficiency cannot be supplied,
not by evidence aliunde, but by a
consideration or examination of
the will itself. But here the
situation is different. While the
attestation clause does not state
the number of sheets or pages
upon which the will is written,
however, the last part of the body
of the will contains a statement
that it is composed of eight
pages, which circumstance in our
opinion takes this case out of the
rigid rule of construction and
places it within the realm of
similar cases where a broad and
more liberal view has been
adopted to prevent the will of the
testator from being defeated by
purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has
the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of
this page is assured not only (sic)
the fact that the testatrix and two
other witnesses did sign the
defective page, but also by its
bearing the coincident imprint of
the seal of the notary public
before whom the testament was
ratified by testatrix and all three
witnesses. The law should not be
so strictly and literally interpreted
as to penalize the testatrix on
account of the inadvertence of a
single witness over whose
conduct she had no control
where the purpose of the law to
guarantee the Identity of the
testament and its component
pages is sufficiently attained, no
intentional or deliberate deviation
existed, and the evidence on
record attests to the fun
observance of the statutory
requisites. Otherwise, as stated
in Vda. de Gil. Vs. Murciano, 49
Off. Gaz. 1459, at 1479 (decision
on reconsideration) 'witnesses
may sabotage the will by
muddling or bungling it or the
attestation clause.
WHEREFORE, the present petition is hereby
granted. The orders of the respondent court
which denied the probate of tile will, the motion
for reconsideration of the denial of probate,
and the motion for appointment of a special
administrator are set aside. The respondent
court is ordered to allow the probate of the wig
and to conduct further proceedings in
accordance with this decision. No
pronouncement on costs.
SO ORDERED.
41
Page
G.R. No. 27440, December 24, 1927
JOSE VILLAFLOR, PETITIONER AND
APPELLANT, VS. DEOGRACIAS TOBIAS ET
AL., OPPOSITORS AND APPELLEES.
DECISION
OSTRAND, J.:
This is an appeal from a judgment denying a
petition for the probate of a will alleged to have
been executed by one Gregoria Villaflor who
died in the municipality of Santo Domingo,
Province of Ilocos Sur on October 7, 1925. The
petition was presented by Jose Villaflor, one of
the testamentary heirs of the deceased. Pilar
Villaflor, Deogracias Tobias, and several others
whose names do not appear in the record,
contested the will upon the following grounds:
(1) That it was not signed by the alleged
testatrix personally though she was well able to
do so at the time of the execution of the
document; (2) that said testatrix did not
authorize any one to sign the alleged will in her
name; (3) that both before and after the
execution of the document, Gregoria Villaflor
signed various documents by thumb marks; (4)
that although it is true that the testatrix
requested that the will be prepared, she
nevertheless refused to sign it because it was
contrary to her desires and instructions; (5) that
subsequent to the date upon which the alleged
will was executed, Gregoria Villaflor on several
occasions stated that it was not her testament;
(6) that the alleged will was not executed or
signed in conformity with the law.
The grounds upon which the court below
based the rejection of the document are thus
stated in its decision.
"After a careful examination of all the evidence
of record, this court is of opinion that it has
been sufficiently proved that Claro Lazo, the
person who is alleged to have written the name
of the testatrix in her behalf and by her express
direction, subscribed the name and surname of
the testatrix and signed the will in question
without Rufino D. Soliven, one of the attesting
witnesses, being present; and that neither was
said Rufino D. Soliven present when Vicente
Tacderas, one of the attesting witnesses,
signed it; and lastly, when Rufino D. Soliven
signed the will the witness Vicente Tacderas
was not present.
"Besides the foregoing defect, which the court
believes fatal, it also finds that the will in
question, marked Exhibit B of the applicant,
was typewritten on eight catalan sheets, one
separated from the others; that the attestation
clause was written on a separate sheet,
marked page 9, when said clause could have
been written totally or partially on page 8, since
one-half of this latter page is blank.
"In the opinion of the court, all these
circumstances tend to make the authenticity
and due execution of the will in question very
doubtful and suspicious. And if the testimony of
the witnesses for the opposition should be
taken into account as well as the circumstance
that the testatrix Gregoria Villaflor has neither
signed nor subscribed the alleged will,
notwithstanding the fact that it has been proven
in the record, that on July 12, 1923, the day on
which it is alleged the said will was executed,
the testatrix was in good and sound health,
although she could not walk on her own feet
inasmuch as she was then suffering from
rheumatism or partial paralysis of the lower
extremities, and that on July 27, and May 25,
1923, the testatrix Gregoria Villaflor used to
mark with her thumb, if she did not sign, the
document she executed, as it was proven
during the trial by Exhibits 1 and 2 of the
opponents, the doubt and suspicion which this
court entertains in regard to the authenticity of
the will in question, becomes a certainty that
said testament is false."
We are reluctant to set aside the findings of the
court below but they are, in our opinion, so
clearly without sufficient support in the record
that we are constrained to reject them. The will
in question is dated July 12, 1923, and was
prepared by a lawyer, Eustaquio Gallardo, and
as far as appearances go, was executed in
strict compliance with the provisions of section
618 of the Code of Civil Procedure for the
execution of wills. The testatrix's name was
signed by one Claro Lazo, a clerk in the office
of the municipal treasurer of Santo Domingo,
and the attesting witnesses were Vicente
Tacderas, municipal president, Rufino D.
Soliven, chief of police, and Mariano Pizarro,
municipal treasurer, all of the town of Santo
Domingo. The finding of the court below that
the witness Soliven was not present when
Claro Lazo signed the name of the testatrix
and when Vicente Tacderas signed as witness,
is based on the fact that, in testifying in this
case, Claro Lazo upon being asked to
enumerate the names of the persons present
at the time of the signing of the document,
omitted the name of Soliven. But it appears
from the transcript of the testimony that he
afterwards corrected his original statement and
testified that Soliven, as well as the other
witnesses to the will, was present while all of
the signatures were affixed. This is in harmony
with the testimony of all of the instrumental
witnesses and is undoubtedly true; there is,
indeed, nothing strange or unusual in a
mistake such as that made by Lazo. It may be
noted that it is not disputed that the lawyer
42
Gallardo was present during the whole
proceeding and as he appears to have
Page
possessed full knowledge of the formal as the last will and testament of the deceased
requirements for the execution of a will, it is Gregoria Villaflor. No costs will be allowed. So
highly improbable that he would have allowed ordered.
the will in question to be signed without the
presence of the testatrix and of all of the
witnesses.
That the attestation clause of the will is written
on a separate page and not on the last page of
the body of the document is, in our opinion, a
matter of minor importance and is explained by
the fact that if the clause had been written on
the eighth page of the will in direct continuation
of the body thereof, there would not have been
sufficient space on that page for the signatures
of the witnesses to the clause. It is also to be
observed that all of the pages, including that
upon which the attestation clause is written,
bear the signatures of all of the witnesses and
that there is no question whatever as to the
genuineness of said signatures.
The fact that the name of the testatrix was
written by another person, and that she did not
sign by thumb-mark, is easily explained and is
evidently due to an attempt on the part of the
lawyer Gallardo to comply strictly with the
following clause in the Spanish text of section
618 of the Code of Civil Procedure: "Excepto
en el caso a que se refiere el articulo anterior,
no sera valido para la trasmision de bienes
muebles e inmuebles, ni los gravara y afectara,
ningun testamento a menos que este escrito y
que haya sido firmado por el testador, o que
lleve el nombre de este, escrito por otra
persona en su presencia y bajo su direccion
expresa, * * *." The making of a finger mark is
not "escribir" and it may be noted that Gallardo
apparently is a good Spanish scholar; that it
does not appear that he knows the English
language; and that he therefore probably used
the Spanish text of the Code.
There is some testimony on the part of the
contestants to the effect that the testatrix on
various occasions, subsequent to the
execution of the will, had stated that it was not
in conformity with her instructions and that it
was not her will. Assuming that such
statements were made, we can give them but
little importance. The testatrix was an old
woman and might well have made the
statements by way of justification in
conversation with persons who considered
themselves wronged by the provisions of her
will, but expressions of that kind cannot, of
course, work the revocation of the document.
The testatrix lived for over two years after the
will was made and had ample opportunity to
make another will if she was dissatisfied with
the first.
For the reasons stated the appealed judgment
43

is hereby reversed and it is ordered that the

document in question be admitted to probate
Page
 ARTICLE 810
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE
ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates
for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the
order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of
Manila, Branch XXI disallowing the probate of
the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the filing of
this petition are undisputed.
After the death of spouses Andres G. de Jesus
and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of
the Intestate Estate of Andres G. de Jesus and
Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R.
Roxas was appointed administrator. After
Letters of Administration had been granted to
the petitioner, he delivered to the lower court a
document purporting to be the holographic Will
of the deceased Bibiana Roxas de Jesus. On
May 26, 1973, respondent Judge Jose Colayco
set the hearing of the probate of the
holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after
his appointment as administrator, he found a
notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and
24 thereof, a letter-win addressed to her
children and entirely written and signed in the
handwriting of the deceased Bibiana R. de
Jesus was found. The will is dated "FEB./61 "
and states: "This is my win which I want to be
respected although it is not written by a lawyer.
...
The testimony of Simeon R. Roxas was
corroborated by the testimonies of Pedro
Roxas de Jesus and Manuel Roxas de Jesus
who likewise testified that the letter dated
"FEB./61 " is the holographic Will of their
deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and
positively Identified her signature. They further
testified that their deceased mother understood
English, the language in which the holographic
Will is written, and that the date "FEB./61 " was
the date when said Will was executed by their
mother.
Respondent Luz R. Henson, another
compulsory heir filed an "opposition to probate"
assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was
executed through force, intimidation and/or
under duress, undue influence and improper
pressure, and (c) the alleged testatrix acted by
mistake and/or did not intend, nor could have
intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose
C. Colayco issued an order allowing the
probate of the holographic Will which he found
to have been duly executed in accordance with
law.
Respondent Luz Roxas de Jesus filed a motion
for reconsideration alleging inter alia that the
alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required
by Article 810 of the Civil Code. She contends
that the law requires that the Will should
contain the day, month and year of its
execution and that this should be strictly
complied with.
On December 10, 1973, respondent Judge
Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will
on the ground that the word "dated" has
generally been held to include the month, day,
and year. The dispositive portion of the order
reads:
WHEREFORE, the document
purporting to be the holographic
Will of Bibiana Roxas de Jesus,
is hereby disallowed for not
having been executed as
required by the law. The order of
August 24, 1973 is hereby set
aside.
The only issue is whether or not the date
"FEB./61 " appearing on the holographic Will of
the deceased Bibiana Roxas de Jesus is a
valid compliance with the Article 810 of the
Civil Code which reads:
ART. 810. A person may execute
a holographic will which must be
entirely written, dated, and signed
by the hand of the testator
himself. It is subject to no other
form, and may be made in or out
of the Philippines, and need not
be witnessed.
The petitioners contend that while Article 685
of the Spanish Civil Code and Article 688 of the
Old Civil Code require the testator to state in
44
his holographic Win the "year, month, and day
of its execution," the present Civil Code omitted
Page
the phrase Año mes y dia and simply requires
that the holographic Will should be dated. The
petitioners submit that the liberal construction
of the holographic Will should prevail.
Respondent Luz Henson on the other hand
submits that the purported holographic Will is
void for non-compliance with Article 810 of the
New Civil Code in that the date must contain
the year, month, and day of its execution. The
respondent contends that Article 810 of the
Civil Code was patterned after Section 1277 of
the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had
consistently ruled that the required date
includes the year, month, and day, and that if
any of these is wanting, the holographic Will is
invalid. The respondent further contends that
the petitioner cannot plead liberal construction
of Article 810 of the Civil Code because
statutes prescribing the formalities to be
observed in the execution of holographic Wills
are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court
departs from a strict and literal application of
the statutory requirements regarding the due
execution of Wills. We should not overlook the
liberal trend of the Civil Code in the manner of
execution of Wills, the purpose of which, in
case of doubt is to prevent intestacy —
The underlying and fundamental
objectives permeating the
provisions of the law on wigs 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 sufficien
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 modem tendency with respect
to the formalities in the execution
of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in
Heirs of Raymundo Castro v. Bustos (27 SCRA
327) he emphasized that:
xxx xxx xxx
... The law has a tender regard
for the will of the testator
expressed in his last will and
testament on the ground that any
disposition made by the testator
is better than that which the law
can make. For this reason,
intestate succession is nothing
more than a disposition based
upon the presumed will of the
decedent.
Thus, the prevailing policy is to require
satisfaction of the legal requirements in order
to guard against fraud and bad faith but without
undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11
SCRA 422). If a Will has been executed in
substantial compliance with the formalities of
the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said
Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the
facts and circumstances of record
are to be considered in the
application of any given rule. If
the surrounding circumstances
point to a regular execution of the
wilt and the instrument appears
to have been executed
substantially in accordance with
the requirements of the law, the
inclination should, in the absence
of any suggestion of bad faith,
forgery or fraud, lean towards its
admission to probate, although
the document may suffer from
some imperfection of language,
or other non-essential defect. ...
(Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to
comply with all the requisites, although
compliance is not literal, it is sufficient if the
objective or purpose sought to be
accomplished by such requisite is actually
attained by the form followed by the testator.
The purpose of the solemnities surrounding the
execution of Wills has been expounded by this
Court in Abangan v. Abanga 40 Phil. 476,
where we ruled 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 guaranty their
truth and authenticity. ...
In particular, a complete date is required to
provide against such contingencies as that of
two competing Wills executed on the same
day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v.
Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this
case and found no evidence of bad faith and
45
fraud in its execution nor was there any
substitution of Wins and Testaments. There is
Page
no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix
herself and in a language known to her. There
is also no question as to its genuineness and
due execution. All the children of the testatrix
agree on the genuineness of the holographic
Will of their mother and that she had the
testamentary capacity at the time of the
execution of said Will. The objection interposed
by the oppositor-respondent Luz Henson is
that the holographic Will is fatally defective
because the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This
objection is too technical to be entertained.
As a general rule, the "date" in a holographic
Will should include the day, month, and year of
its execution. However, when as in the case at
bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the
authenticity of the Will is established and the
only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code,
probate of the holographic Will should be
allowed under the principle of substantial
compliance.
WHEREFORE, the instant petition is
GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus is
reinstated.
SO ORDERED.

46
Page
G.R. No. 58168 December 19, 1989
CONCEPCION MAGSAYSAY-LABRADOR,
SOLEDAD MAGSAYSAY-CABRERA, LUISA
MAGSAYSAY-CORPUZ, assisted be her
husband, Dr. Jose Corpuz, FELICIDAD P.
MAGSAYSAY, and MERCEDES
MAGSAYSAY-DIAZ, petitioners,
vs.
THE COURT OF APPEALS and ADELAIDA
RODRIGUEZ-MAGSAYSAY, Special
Administratrix of the Estate of the late
Genaro F. Magsaysay respondents.
FERNAN, C.J.:
In this petition for review on certiorari,
petitioners seek to reverse and set aside [1]
the decision of the Court of Appeals dated July
l3, 1981, 1 affirming that of the Court of First
Instance of Zambales and Olongapo City which
denied petitioners' motion to intervene in an
annulment suit filed by herein private
respondent, and [2] its resolution dated
September 7, 1981, denying their motion for
reconsideration.
Petitioners are raising a purely legal question;
whether or not respondent Court of Appeals
correctly denied their motion for intervention.
The facts are not controverted.
On February 9, 1979, Adelaida Rodriguez-
Magsaysay, widow and special administratix of
the estate of the late Senator Genaro
Magsaysay, brought before the then Court of
First Instance of Olongapo an action against
Artemio Panganiban, Subic Land Corporation
(SUBIC), Filipinas Manufacturer's Bank
(FILMANBANK) and the Register of Deeds of
Zambales. In her complaint, she alleged that in
1958, she and her husband acquired, thru
conjugal funds, a parcel of land with
improvements, known as "Pequena Island",
covered by TCT No. 3258; that after the death
of her husband, she discovered [a] an
annotation at the back of TCT No. 3258 that
"the land was acquired by her husband from
his separate capital;" [b] the registration of a
Deed of Assignment dated June 25, 1976
purportedly executed by the late Senator in
favor of SUBIC, as a result of which TCT No.
3258 was cancelled and TCT No. 22431
issued in the name of SUBIC; and [c] the
registration of Deed of Mortgage dated April
28, 1977 in the amount of P 2,700,000.00
executed by SUBIC in favor of FILMANBANK;
that the foregoing acts were void and done in
an attempt to defraud the conjugal partnership
considering that the land is conjugal, her
marital consent to the annotation on TCT No.
3258 was not obtained, the change made by
the Register of Deeds of the titleholders was
effected without the approval of the
Commissioner of Land Registration and that
the late Senator did not execute the purported
Deed of Assignment or his consent thereto, if
obtained, was secured by mistake, violence
and intimidation. She further alleged that the
assignment in favor of SUBIC was without
consideration and consequently null and void.
She prayed that the Deed of Assignment and
the Deed of Mortgage be annulled and that the
Register of Deeds be ordered to cancel TCT
No. 22431 and to issue a new title in her favor.
On March 7, 1979, herein petitioners, sisters of
the late senator, filed a motion for intervention
on the ground that on June 20, 1978, their
brother conveyed to them one-half (1/2 ) of his
shareholdings in SUBIC or a total of 416,566.6
shares and as assignees of around 41 % of the
total outstanding shares of such stocks of
SUBIC, they have a substantial and legal
interest in the subject matter of litigation and
that they have a legal interest in the success of
the suit with respect to SUBIC.
On July 26, 1979, the court denied the motion
for intervention, and ruled that petitioners have
no legal interest whatsoever in the matter in
litigation and their being alleged assignees or
transferees of certain shares in SUBIC cannot
legally entitle them to intervene because
SUBIC has a personality separate and distinct
from its stockholders.
On appeal, respondent Court of Appeals found
no factual or legal justification to disturb the
findings of the lower court. The appellate court
further stated that whatever claims the
petitioners have against the late Senator or
against SUBIC for that matter can be ventilated
in a separate proceeding, such that with the
denial of the motion for intervention, they are
not left without any remedy or judicial relief
under existing law.
Petitioners' motion for reconsideration was
denied. Hence, the instant recourse.
Petitioners anchor their right to intervene on
the purported assignment made by the late
Senator of a certain portion of his
shareholdings to them as evidenced by a Deed
of Sale dated June 20, 1978. 2 Such transfer,
petitioners posit, clothes them with an interest,
protected by law, in the matter of litigation.
Invoking the principle enunciated in the case of
PNB v. Phil. Veg. Oil Co., 49 Phil. 857,862 &
853 (1927), 3petitioners strongly argue that
their ownership of 41.66% of the entire
outstanding capital stock of SUBIC entitles
them to a significant vote in the corporate
affairs; that they are affected by the action of
the widow of their late brother for it concerns
the only tangible asset of the corporation and
that it appears that they are more vitally
interested in the outcome of the case than
47
SUBIC.
Page
Viewed in the light of Section 2, Rule 12 of the
Revised Rules of Court, this Court affirms the
respondent court's holding that petitioners
herein have no legal interest in the subject
matter in litigation so as to entitle them to
intervene in the proceedings below. In the case
of Batama Farmers' Cooperative Marketing
Association, Inc. v. Rosal, 4 we held: "As
clearly stated in Section 2 of Rule 12 of the
Rules of Court, to be permitted to intervene in
a pending action, the party must have a legal
interest in the matter in litigation, or in the
success of either of the parties or an interest
against both, or he must be so situated as to
be adversely affected by a distribution or other
disposition of the property in the custody of the
court or an officer thereof ."
To allow intervention, [a] it must be shown that
the movant has legal interest in the matter in
litigation, or otherwise qualified; and [b]
consideration must be given as to whether the
adjudication of the rights of the original parties
may be delayed or prejudiced, or whether the
intervenor's rights may be protected in a
separate proceeding or not. Both requirements
must concur as the first is not more important
than the second. 5
The interest which entitles a person to
intervene in a suit between other parties must
be in the matter in litigation and of such direct
and immediate character that the intervenor
will either gain or lose by the direct legal
operation and effect of the judgment.
Otherwise, if persons not parties of the action
could be allowed to intervene, proceedings will
become unnecessarily complicated, expensive
and interminable. And this is not the policy of
the law. 6
The words "an interest in the subject" mean a
direct interest in the cause of action as
pleaded, and which would put the intervenor in
a legal position to litigate a fact alleged in the
complaint, without the establishment of which
plaintiff could not recover. 7
Here, the interest, if it exists at all, of
petitioners-movants is indirect, contingent,
remote, conjectural, consequential and
collateral. At the very least, their interest is
purely inchoate, or in sheer expectancy of a
right in the management of the corporation and
to share in the profits thereof and in the
properties and assets thereof on dissolution,
after payment of the corporate debts and
obligations.
While a share of stock represents a
proportionate or aliquot interest in the property
of the corporation, it does not vest the owner
thereof with any legal right or title to any of the
property, his interest in the corporate property
being equitable or beneficial in nature.
Shareholders are in no legal sense the owners
of corporate property, which is owned by the
corporation as a distinct legal person. 8
Petitioners further contend that the availability
of other remedies, as declared by the Court of
appeals, is totally immaterial to the availability
of the remedy of intervention.
We cannot give credit to such averment. As
earlier stated, that the movant's interest may
be protected in a separate proceeding is a
factor to be considered in allowing or
disallowing a motion for intervention. It is
significant to note at this juncture that as per
records, there are four pending cases involving
the parties herein, enumerated as follows: [1]
Special Proceedings No. 122122 before the
CFI of Manila, Branch XXII, entitled
"Concepcion Magsaysay-Labrador, et al. v.
Subic Land Corp., et al.", involving the validity
of the transfer by the late Genaro Magsaysay
of one-half of his shareholdings in Subic Land
Corporation; [2] Civil Case No. 2577-0 before
the CFI of Zambales, Branch III, "Adelaida
Rodriguez-Magsaysay v. Panganiban, etc.;
Concepcion Labrador, et al. Intervenors",
seeking to annul the purported Deed of
Assignment in favor of SUBIC and its
annotation at the back of TCT No. 3258 in the
name of respondent's deceased husband; [3]
SEC Case No. 001770, filed by respondent
praying, among other things that she be
declared in her capacity as the surviving
spouse and administratrix of the estate of
Genaro Magsaysay as the sole subscriber and
stockholder of SUBIC. There, petitioners, by
motion, sought to intervene. Their motion to
reconsider the denial of their motion to
intervene was granted; [4] SP No. Q-26739
before the CFI of Rizal, Branch IV, petitioners
herein filing a contingent claim pursuant to
Section 5, Rule 86, Revised Rules of
Court. 9 Petitioners' interests are no doubt
amply protected in these cases.
Neither do we lend credence to petitioners'
argument that they are more interested in the
outcome of the case than the corporation-
assignee, owing to the fact that the latter is
willing to compromise with widow-respondent
and since a compromise involves the giving of
reciprocal concessions, the only conceivable
concession the corporation may give is a total
or partial relinquishment of the corporate
assets. 10
Such claim all the more bolsters the contingent
nature of petitioners' interest in the subject of
litigation.
The factual findings of the trial court are clear
on this point. The petitioners cannot claim the
right to intervene on the strength of the transfer
of shares allegedly executed by the late
48
Senator. The corporation did not keep books
and records. 11 Perforce, no transfer was ever
Page
recorded, much less effected as to prejudice
third parties. The transfer must be registered in
the books of the corporation to affect third
persons. The law on corporations is explicit.
Section 63 of the Corporation Code provides,
thus: "No transfer, however, shall be valid,
except as between the parties, until the
transfer is recorded in the books of the
corporation showing the names of the parties
to the transaction, the date of the transfer, the
number of the certificate or certificates and the
number of shares transferred."
And even assuming arguendo that there was a
valid transfer, petitioners are nonetheless
barred from intervening inasmuch as their
rights can be ventilated and amply protected in
another proceeding.
WHEREFORE, the instant petition is hereby
DENIED. Costs against petitioners.
SO ORDERED.

49
Page
 ARTICLE 811
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a
decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence
required for the probate of a holographic will.
The established facts are thus summarized in
the decision appealed from (Rec. App. pp. 22-
24):
"Briefly speaking, the following facts
were established by the petitioner; that
on September 9, 1957, Fortunata S.
Vda. de Yance died at 13 Luskot,
Quezon City, known to be the last
residence of said testatrix; that
Francisco Azaola, petitioner herein for
probate of the holographic will,
submitted the said holographic will (Exh.
C) whereby Maria Milagros Azaola was
made the sole heir as against the
nephew of deceased Cesario Singson;
that witness Francisco Azaola testified
that he saw the holographic will (Exh. C)
one month, more or less, before the
death of the testatrix, as the same was
handed to him and his wife; that the
witness testified also that he recognized
all the signatures appearing in the
holographic will (Exh. C) as the
handwriting of the testatrix and to
reinforce said statement, witness
presented the mortgage (Exh. E), the
special power of the attorney (Exh. F),
and the general power of attorney (Exh.
F-1), besides the deeds of sale (Exhs. G
and G-1) including an affidavit (Exh. G-
2), and that there were further exhibited
in court two residence certificates (Exhs.
H and H-1) to show the signatures of the
testatrix, for comparison purposes; that
said witness, Azaola, testified that the
penmanship appearing in the aforesaid
documentary evidence is in the
handwriting of the testatrix as well as
the signatures appearing in the
aforesaid documentary evidence is in
the handwriting of the testatrix as well
as the signatures appearing therein are
the signatures of the testatrix; that said
witness, in answer to a question of his
counsel admitted that the holographic
will was handed to him by the testatrix.
"apparently it must have been written by
her" (t.s.n., p. 11). However, on page 16
on the same transcript of the
stenographic notes, when the same
witness was asked by counsel if he was
familiar with the penmanship and
handwriting of the deceased Fortunata
Vda. de Yance, he answered positively
in the affirmative and when he was
asked again whether the penmanship
referred to in the previous answer as
appearing in the holographic will (Exh.
C) was hers (testatrix'), he answered, "I
would definitely say it is hers"; that it
was also established in the proceedings
that the assessed value of the property
of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.
The opposition to the probate was on the
ground that (1) the execution of the will was
procured by undue and improper pressure and
influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously
intend the instrument to be her last will, and
that the same was actually written either on the
5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that
under Article 811 of the Civil Code, the
proponent must present three witnesses who
could declare that the will and the signature are
in the writing of the testatrix, the probate being
contested; and because the lone witness
presented by the proponent "did not prove
sufficiently that the body of the will was written
in the handwriting of the testatrix."
The proponent appealed, urging: first, that he
was not bound to produce more than one
witness because the will's authenticity was not
questioned; and second, that Article 811 does
not mandatorily require the production of three
witnesses to identify the handwriting and
signature of a holographic will, even if its
authenticity should be denied by the adverse
party.
Article 811 of the Civil Code of the Philippines
is to the following effect:
ART. 811. In the probate of a
holographic will, it shall be necessary
that at least one witness who knows the
handwriting and signature of the testator
explicitly declare that the will and the
signature are in the handwriting of the
testator. If the will is contested, at least
three of such witnesses shall be
required.
In the absence of any competent
witnesses referred to in the preceding
paragraph, and if the court deems it
50
necessary, expert testimony may be
resorted to. (691a).
Page
We agree with the appellant that since the
authenticity of the will was not contested, he
was not required to produce more than one
witness; but even if the genuineness of the
holographic will were contested, we are of the
opinion that Article 811 of our present Civil
Code can not be interpreted as to require the
compulsory presentation of three witnesses to
identify the handwriting of the testator, under
penalty of having the probate denied. Since no
witness may have been present at the
execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witness
possessing the requisite qualifications is a
matter beyond the control of the proponent. For
it is not merely a question of finding and
producing any three witnesses; they must be
witnesses "who know the handwriting and
signature of the testator" and who can declare
(truthfully, of course, even if the law does not
so express) "that the will and the signature are
in the handwriting of the testator". There may
be no available witness of the testator's hand;
or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently
the reason why the second paragraph of Article
811 prescribes that —
in the absence of any competent
witness referred to in the preceding
paragraph, and if the court deems it
necessary, expert testimony may be
resorted to.
As can be seen, the law foresees the
possibility that no qualified witness may be
found (or what amounts to the same thing, that
no competent witness may be willing to testify
to the authenticity of the will), and provides for
resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article
(requiring that three witnesses be presented if
the will is contested and only one if no contest
is had) was derived from the rule established
for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be
ignored that the requirement can be
considered mandatory only in the case of
ordinary testaments, precisely because the
presence of at least three witnesses at the
execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the
will is holographic, no witness need be present
(Art. 10), and the rule requiring production of
three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert
evidence is conditioned by the words "if the
Court deem it necessary", which reveal that
what the law deems essential is that the Court
should be convinced of the will's authenticity.
Where the prescribed number of witnesses is
produced and the court is convinced by their
testimony that the ill is genuine, it may consider
it unnecessary to call for expert evidence. On
the other hand, if no competent witness is
available, or none of those produced is
convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty
of the Court, in fine, is to exhaust all available
lines of inquiry, for the state is as much
interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article
691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12,
2nd Ed., p.421), sagely remarks:
La manera como esta concebida la
redaccion del ultimo apartado de dicho
precepto induce la conclusion de que
siempre o por lo menos, en la mayor
parte de los casos, el Juez debe acudir
al criterio pericial para que le ilustre
acerca de la autenticidad del testamento
olografo, aunque ya esten insertas en
los autos del expediente las
declaraciones testificales. La prudencia
con que el Juez debe de proceder en
resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa
del testamento olografo lo hace
necesario para mayor garantia de todos
los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras
puede ser una confirmacion facultativa
del dicho profano de los testigos y un
modo de desvanecer las ultimas dudas
que pudieran ocurrir al Juez acerca de
la autenticidad que trata de averigaur y
declarar. Para eso se ha escrito la frase
del citado ultimo apartado, (siempre que
el Juez lo estime conveniente), haya
habido o no testigos y dudaran o no
estos respecto de los extremos por que
son preguntados.
El arbitrio judicial en este caso debe
formarse con independencia de los
sucesos y de su significacion, para
responder debidamente de las
resoluciones que haya de dictar.
And because the law leaves it to the trial court
if experts are still needed, no unfavourable
inference can be drawn from a party's failure to
offer expert evidence, until and unless the
court expresses dissatisfaction with the
testimony of the lay witnesses.
Our conclusion is that the rule of the first
51
paragraph of Article 811 of the Civil Code is
merely directory and is not mandatory.
Page
Considering, however, that this is the first
occasion in which this Court has been called
upon to construe the import of said article, the
interest of justice would be better served, in our
opinion, by giving the parties ample opportunity
to adduce additional evidence, including expert
witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed
from is set aside, and the records ordered
remanded to the Court of origin, with
instructions to hold a new trial in conformity
with this opinion. But evidence already on
record shall not be retaken. No costs.

52
Page
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE
OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE
ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin 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 named therein as such.
This special proceeding was begun on October
2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner
Celso Icasiano as executor thereof.
The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof
to be published for three (3) successive weeks,
previous to the time appointed, in the
newspaper "Manila chronicle", and also caused
personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a
daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to
have herself appointed as a special
administrator, to which proponent objected.
Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust
Company as special administrator.1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son
of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to
the probate of the alleged will.
On March 19, 1959, the petitioner proponent
commenced the introduction of his evidence;
but on June 1, 1959, he filed a motion for the
admission of an amended and supplemental
petition, alleging that the decedent left a will
executed in duplicate with all the legal
requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"),
which he allegedly found only on or about May
26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the
admission of the amended and supplemental
petition, but by order of July 20, 1959, the court
admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented
their respective evidence, and after several
hearings the court issued the order admitting
the will and its duplicate to probate. From this
order, the oppositors appealed directly to this
Court, the amount involved being over
P200,000.00, on the ground that the same is
contrary to law and the evidence.
The evidence presented for the petitioner is to
the effect that Josefa Villacorte died in the City
of Manila on September 12, 1958; that on June
2, 1956, the late Josefa Villacorte executed a
last will and testament in duplicate at the house
of her daughter Mrs. Felisa Icasiano at Pedro
Guevara Street, Manila, published before and
attested by three instrumental witnesses,
namely: attorneys Justo P. Torres, Jr. and Jose
V. Natividad, and Mr. Vinicio B. Diy; that the
will was acknowledged by the testatrix and by
the said three instrumental witnesses on the
same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and
that the will was actually prepared by attorney
Fermin Samson, who was also present during
the execution and signing of the decedent's
last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano and a little girl. Of the said
three instrumental witnesses to the execution
of the decedent's last will and testament,
attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both
testified as to the due execution and
authenticity of the said will. So did the Notary
Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and
also attorneys Fermin Samson, who actually
prepared the document. The latter also testified
upon cross examination that he prepared one
original and two copies of Josefa Villacorte last
will and testament at his house in Baliuag,
Bulacan, but he brought only one original and
one signed copy to Manila, retaining one
unsigned copy in Bulacan.
The records show that the original of the will,
which was surrendered simultaneously with the
filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the
end and in every page, it does not contain the
signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the
amended and supplemental petition and
marked as Exhibit "A-1" is signed by the
testatrix and her three attesting witnesses in
each and every page.
The testimony presented by the proponents of
the will tends to show that the original of the
will and its duplicate were subscribed at the
53
end and on the left margin of each and every
page thereof by the testatrix herself and
Page
attested and subscribed by the three
mentioned witnesses in the testatrix's presence
and in that of one another as witnesses (except
for the missing signature of attorney Natividad
on page three (3) of the original); that pages of
the original and duplicate of said will were duly
numbered; that the attestation clause thereof
contains all the facts required by law to be
recited therein and is signed by the aforesaid
attesting witnesses; that the will is written in the
language known to and spoken by the testatrix
that the attestation clause is in a language also
known to and spoken by the witnesses; that
the will was executed on one single occasion in
duplicate copies; and that both the original and
the duplicate copies were duly acknowledged
before Notary Public Jose Oyengco of Manila
on the same date June 2, 1956.
Witness Natividad who testified on his failure to
sign page three (3) of the original, admits that
he may have lifted two pages instead of one
when he signed the same, but affirmed that
page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert
testimony to the effect that the signatures of
the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on
the same occasion as the original, and further
aver that granting that the documents were
genuine, they were executed through mistake
and with undue influence and pressure
because the testatrix was deceived into
adopting as her last will and testament the
wishes of those who will stand to benefit from
the provisions of the will, as may be inferred
from the facts and circumstances surrounding
the execution of the will and the provisions and
dispositions thereof, whereby proponents-
appellees stand to profit from properties held
by them as attorneys-in-fact of the deceased
and not enumerated or mentioned therein,
while oppositors-appellants are enjoined not to
look for other properties not mentioned in the
will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of
free disposal.
We have examined the record and are
satisfied, as the trial court was, that the
testatrix signed both original and duplicate
copies (Exhibits "A" and "A-1", respectively) of
the will spontaneously, on the same in the
presence of the three attesting witnesses, the
notary public who acknowledged the will; and
Atty. Samson, who actually prepared the
documents; that the will and its duplicate were
executed in Tagalog, a language known to and
spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty.
Fermin Samson, together before they were
actually signed; that the attestation clause is
also in a language known to and spoken by the
testatrix and the witnesses. The opinion of
expert for oppositors, Mr. Felipe Logan, that
the signatures of the testatrix appearing in the
duplicate original were not written by the same
had which wrote the signatures in the original
will leaves us unconvinced, not merely
because it is directly contradicted by expert
Martin Ramos for the proponents, but
principally because of the paucity of the
standards used by him to support the
conclusion that the differences between the
standard and questioned signatures are
beyond the writer's range of normal scriptural
variation. The expert has, in fact, used as
standards only three other signatures of the
testatrix besides those affixed to the original of
the testament (Exh. A); and we feel that with so
few standards the expert's opinion and the
signatures in the duplicate could not be those
of the testatrix becomes extremely hazardous.
This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly
that the are radical differences that would
justify the charge of forgery, taking into account
the advanced age of the testatrix, the evident
variability of her signatures, and the effect of
writing fatigue, the duplicate being signed right
the original. These, factors were not discussed
by the expert.
Similarly, the alleged slight variance in
blueness of the ink in the admitted and
questioned signatures does not appear
reliable, considering the standard and
challenged writings were affixed to different
kinds of paper, with different surfaces and
reflecting power. On the whole, therefore, we
do not find the testimony of the oppositor's
expert sufficient to overcome that of the notary
and the two instrumental witnesses, Torres and
Natividad (Dr. Diy being in the United States
during the trial, did not testify).
Nor do we find adequate evidence of fraud or
undue influence. The fact that some heirs are
more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs.
Ubag, 14 Phil. 163; Pecson vs. Coronal, 45
Phil. 216). Diversity of apportionment is the
usual reason for making a testament;
otherwise, the decedent might as well die
intestate. The testamentary dispositions that
the heirs should not inquire into other property
and that they should respect the distribution
made in the will, under penalty of forfeiture of
their shares in the free part do not suffice to
prove fraud or undue influence. They appear
motivated by the desire to prevent prolonged
litigation which, as shown by ordinary
experience, often results in a sizeable portion
of the estate being diverted into the hands of
54
non-heirs and speculators. Whether these
clauses are valid or not is a matter to be
Page
litigated on another occassion. It is also well to
note that, as remarked by the Court of Appeals
in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant
and exclude each other; their joining as
grounds for opposing probate shows absence
of definite evidence against the validity of the
will.
On the question of law, we hold that the
inadvertent failure of one witness to affix his
signature to one page of a testament, due to
the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to
justify denial of probate. Impossibility of
substitution of this page is assured not only the
fact that the testatrix and two other witnesses
did sign the defective page, but also by its
bearing the coincident imprint of the seal of the
notary public before whom the testament was
ratified by testatrix and all three witnesses. The
law should not be so strictly and literally
interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control, where
the purpose of the law to guarantee the identity
of the testament and its component pages is
sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record
attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil.
vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or
the attestation clause".
That the failure of witness Natividad to sign
page three (3) was entirely through pure
oversight is shown by his own testimony as
well as by the duplicate copy of the will, which
bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public
likewise evidence that no one was aware of the
defect at the time.
This would not be the first time that this Court
departs from a strict and literal application of
the statutory requirements, where the purposes
of the law are otherwise satisfied. Thus,
despite the literal tenor of the law, this Court
has held that a testament, with the only page
signed at its foot by testator and witnesses, but
not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476);
and that despite the requirement for the
correlative lettering of the pages of a will, the
failure to make the first page either by letters or
numbers is not a fatal defect (Lopez vs. Liboro,
81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction of the legal
requirements in order to guard against fraud
and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the
original of the will is in existence and available,
the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of
original because it lacked one signature in its
third page, it is easily discerned that
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.
55
Page
[G.R. No. 123486. August 12, 1999]
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGEL
INE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA
PATIGAS,respondents.
DECISION
PARDO, J.:
Before us is a petition for review
on certiorari of the decision of the Court of
Appeals[1] and its resolution denying
reconsideration, ruling:
Upon the unrebutted testimony of appellant
Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators
holographic will has been established and the
handwriting and signature therein (exhibit S)
are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate
of the holographic will in question be called
for. The rule is that after plaintiff has completed
presentation of his evidence and the defendant
files a motion for judgment on demurrer to
evidence on the ground that upon the facts and
the law plaintiff has shown no right to relief, if
the motion is granted and the order to
dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf
(Sec. 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered
for appellant in the instant case.
Wherefore, the order appealed from is
REVERSED and judgment rendered allowing
the probate of the holographic will of the
testator Matilde Seo Vda. de Ramonal.[2]
The facts are as follows:
On April 6, 1990, Evangeline Calugay,
Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of
the deceased Matilde Seo Vda. de Ramonal,
filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition[3] for probate of
the holographic will of the deceased, who died
on January 16, 1990.
In the petition, respondents claimed that
the deceased Matilde Seo Vda. de Ramonal,
was of sound and disposing mind when she
executed the will on August 30, 1978, that
there was no fraud, undue influence, and
duress employed in the person of the testator,
and the will was written voluntarily.
The assessed value of the decedents
property, including all real and personal
property was about P400,000.00, at the time of
her death.[4]
On June 28, 1990, Eugenia Ramonal
Codoy and Manuel Ramonal filed an
opposition[5] to the petition for probate, alleging
that the holographic will was a forgery and that
the same is even illegible. This gives an
impression that a third hand of an interested
party other than the true hand of Matilde Seo
Vda. de Ramonal executed the holographic
will.
Petitioners argued that the repeated dates
incorporated or appearing on the will after
every disposition is out of the ordinary. If the
deceased was the one who executed the will,
and was not forced, the dates and the
signature should appear at the bottom after the
dispositions, as regularly done and not after
every disposition. And assuming that the
holographic will is in the handwriting of the
deceased, it was procured by undue and
improper pressure and influence on the part of
the beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses
and various documentary evidence. Petitioners
instead of presenting their evidence, filed a
demurrer[6] to evidence, claiming that
respondents failed to establish sufficient factual
and legal basis for the probate of the
holographic will of the deceased Matilde Seo
Vda. de Ramonal.
On November 26, 1990, the lower Court
issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing
consideration, the Demurrer to Evidence
having being well taken, same is granted, and
the petition for probate of the document
(Exhibit S) on the purported Holographic Will of
the late Matilde Seo Vda. de Ramonal, is
denied for insufficiency of evidence and lack of
merits.[7]
On December 12, 1990, respondents filed
a notice of appeal,[8] and in support of their
appeal, the respondents once again reiterated
the testimony of the following witnesses,
namely: (1) Augusto Neri; (2) Generosa Senon;
(3) Matilde Ramonal Binanay; (4) Teresita
Vedad; (5) Fiscal Rodolfo Waga; and (6)
Evangeline Calugay.
To have a clear understanding of the
testimonies of the witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court, Court of
First Instance of Misamis Oriental, where the
special proceedings for the probate of the
holographic will of the deceased was filed. He
produced and identified the. records of the
case. The documents presented bear the
signature of the deceased, Matilde Seo Vda.
de Ramonal, for the purpose of laying the basis
for comparison of the handwriting of the
testatrix, with the writing treated or admitted as
genuine by the party against whom the
evidence is offered.
Generosa Senon, election registrar of
Cagayan de Oro, was presented to produce
56
and identify the voters affidavit of the
decedent. However, the voters affidavit was
Page
not produced for the same was already
destroyed and no longer available.
Matilde Ramonal Binanay, testified that
the deceased Matilde Seo Vda. de Ramonal
was her aunt, and that after the death of
Matildes husband, the latter lived with her in
her parents house for eleven (11) years, from
1958 to 1969. During those eleven (11) years
of close association with the deceased, she
acquired familiarity with her signature and
handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in
collecting rentals from her various tenants of
commercial buildings, and the deceased
always issued receipts. In addition to this, she
(witness Matilde Binanay) assisted the
deceased in posting the records of the
accounts, and carried personal letters of the
deceased to her creditors.
Matilde Ramonal Binanay further testified
that at the time of the death of Matilde Vda. de
Ramonal, she left a holographic will dated
August 30, 1978, which was personally and
entirely written, dated and signed, by the
deceased and that all the dispositions therein,
the dates, and the signatures in said will, were
that of the deceased.
Fiscal Rodolfo Waga testified that before
he was appointed City Fiscal of Cagayan de
Oro, he was a practicing lawyer, and handled
all the pleadings and documents signed by the
deceased in connection with the intestate
proceedings of her late husband, as a result of
which he is familiar with the handwriting of the
latter. He testified that the signature appearing
in the holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but
he can not be sure.
The fifth witness presented was Mrs.
Teresita Vedad, an employee of the
Department of Environment and Natural
Resources, Region 10. She testified that she
processed the application of the deceased for
pasture permit and was familiar with the
signature of the deceased, since the deceased
signed documents in her presence, when the
latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the
respondents, testified that she had lived with
the deceased since birth, and was in fact
adopted by the latter. That after a long period
of time she became familiar with the signature
of the deceased. She testified that the
signature appearing in the holographic will is
the true and genuine signature of Matilde Seo
Vda. de Ramonal.
The holographic will which was written in
Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for
Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500
square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd)Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at
Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
"August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz
Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever
buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest
peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals,
rendered decision[9] ruling that the appeal was
meritorious. Citing the decision in the case of
Azaola vs. Singson, 109 Phil. 102, penned by
Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
x x x even if the genuineness of the
holographic will were contested, we are of
the opinion that Article 811 of our present civil
code can not be interpreted as to require the
compulsory presentation of three witnesses to
identify the handwriting of the testator, under
penalty of having the probate denied. Since no
witness may have been present at the
execution of the holographic will, none being
required by law (art. 810, new civil code), it
becomes obvious that the existence of
witnesses possessing the requisite
qualifications is a matter beyond the control of
the proponent. For it is not merely a question of
finding and producing any three witnesses;
they must be witnesses who know the
handwriting and signature of the testator and
who can declare (truthfully, of course, even if
the law does not express) that the will and the
signature are in the handwriting of the testator.
57
There may be no available witness acquainted
with the testators hand; or even if so
Page
familiarized, the witness may be unwilling to
give a positive opinion.Compliance with the
rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the
reason why the second paragraph of article
811 prescribes that
in the absence of any competent witness
referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony
may be resorted to.
As can be seen, the law foresees the
possibility that no qualified witness may be
found (or what amounts to the same thing, that
no competent witness may be willing to testify
to the authenticity of the will), and provides for
resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article
(requiring that three witnesses be presented if
the will is contested and only one if no contest
is had) was derived from the rule established
for ordinary testaments (CF Cabang vs.
Delfinado, 45 PHIL 291; Tolentino v. Francisco,
57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only
in case of ordinary testaments, precisely
because the presence of at least three
witnesses at the execution of ordinary wills is
made by law essential to their validity (Art.
805). Where the will is holographic, no
witness need be present (art.10), and the
rule requiring production of three witnesses
must be deemed merely permissive if
absurd results are to be avoided.
Again, under Art.811, the resort to expert
evidence is conditioned by the words if the
court deem it necessary, which reveal that
what the law deems essential is that the court
should be convinced of the wills
authenticity. Where the prescribed number of
witnesses is produced and the court is
convinced by their testimony that the will is
genuine, it may consider it unnecessary to call
for expert evidence. On the other hand, if no
competent witness is available, or none of
those produced is convincing, the court may
still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to
exhaust all available lines of inquiry, for the
state is as much interested as the proponent
that the true intention of the testator be carried
into effect.
Paraphrasing Azaola vs. Singson, even if the
genuineness of the holographic will were
contested, Article 811 of the civil code cannot
be interpreted as to require the compulsory
presentation of three witnesses to identify the
handwriting of the testator, under penalty of the
having the probate denied. No witness need be
present in the execution of the holographic
will. And the rule requiring the production of
three witnesses is merely permissive. What
the law deems essential is that the court is
convinced of the authenticity of the will. Its duty
is to exhaust all available lines of inquiry, for
the state is as much interested in the
proponent that the true intention of the testator
be carried into effect. And because the law
leaves it to the trial court to decide if experts
are still needed, no unfavorable inference can
be drawn from a partys failure to offer expert
evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay
witnesses.[10]
According to the Court of Appeals,
Evangeline Calugay, Matilde Ramonal Binanay
and other witnesses definitely and in no
uncertain terms testified that the handwriting
and signature in the holographic will were
those of the testator herself.
Thus, upon the unrebutted testimony of
appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the
holographic will and the handwriting and
signature therein, and allowed the will to
probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the
case of Azaola vs. Singson, 109
Phil. 102, relied upon by the
respondent Court of Appeals, was
applicable to the case.
(2) Whether or not the Court of
Appeals erred in holding that private
respondents had been able to
present credible evidence to prove
that the date, text, and signature on
the holographic will were written
entirely in the hand of the testatrix.
(3) Whether or not the Court of
Appeals erred in not analyzing the
signatures in the holographic will of
Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether
the provisions of Article 811 of the Civil Code
are permissive or mandatory. The article
provides, as a requirement for the probate of a
contested holographic will, that at least three
witnesses explicitly declare that the signature
in the will is the genuine signature of the
testator.
We are convinced, based on the language
used, that Article 811 of the Civil Code is
mandatory. The word shall connotes a
mandatory order. We have ruled that shall in a
statute commonly denotes an imperative
obligation and is inconsistent with the idea of
discretion and that the presumption is that the
58
word shall, when used in a statute is
mandatory.[11]
Page
 Laws are enacted to achieve a goal
intended and to guide against an evil or
mischief that aims to prevent. In the case at
bar, the goal to achieve is to give effect to the
wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous
individuals who for their benefit will employ
means to defeat the wishes of the testator.
So, we believe that the paramount
consideration in the present petition is to
determine the true intent of the deceased. An
exhaustive and objective consideration of the
evidence is imperative to establish the true
intent of the testator.
It will be noted that not all the witnesses
presented by the respondents testified
explicitly that they were familiar with the
handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First
Instance, Misamis Oriental, he merely
identified the record of Special Proceedings
No. 427 before said court. He was not
presented to declare explicitly that the
signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar
of Cagayan de Oro City, was presented to
identify the signature of the deceased in the
voters affidavit, which was not even produced
as it was no longer available.
Matilde Ramonal Binanay, on the other
hand, testified that:
Q. And you said for eleven (11) years
Matilde Vda de Ramonal resided with
your parents at Pinikitan, Cagayan de
Oro City. Would you tell the court what
was your occupation or how did Matilde
Vda de Ramonal keep herself busy that
time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial
buildings at Pabayo-Gomez streets.[12]
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue
receipts?
A. Yes, sir.[13]
xxx
Q. Showing to you the receipt dated 23
October 1979, is this the one you are
referring to as one of the receipts which
she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde
vda. De Ramonal, whose signature is
that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a
signature of Matilde vda. De
Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay,
whether you know Matilde vda de
Ramonal kept records of the accounts of
her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of
accounts in behalf of Matilde Vda. De
Ramonal.
Q. How is this record of accounts
made? How is this reflected?
A. In handwritten.[14]
xxx
Q. In addition to collection of rentals, posting
records of accounts of tenants and deed
of sale which you said what else did you
do to acquire familiarity of the signature
of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.[15]
xxx
Q. You testified that at the time of her death
she left a will. I am showing to you a
document with its title tugon is this the
document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit S, there is
that handwritten tugon, whose
handwriting is this?
A. My aunt.
Q. Why do you say this is the
handwriting of your aunt?
A. Because I am familiar with her
signature.[16]
What Ms. Binanay saw were pre-prepared
receipts and letters of the deceased, which she
either mailed or gave to her tenants. She did
not declare that she saw the deceased sign a
document or write a note.
Further, during the cross-examination, the
counsel for petitioners elicited the fact that the
will was not found in the personal belongings of
the deceased but was in the possession of Ms.
Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by
counsel for the petitioners if the late
Matilde Seno vda de Ramonal left a will
you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
59
A. I.
Page
 Q. Since when did you have the possession
of the will?
A. It was in my mothers possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession
since as you said this was originally in
the possession of your mother?
A. 1985.[17]
xxx
Q. Now, Mrs. Binanay was there any
particular reason why your mother left
that will to you and therefore you have
that in your possession?
A. It was not given to me by my mother, I
took that in the aparador when she died.
Q. After taking that document you kept it
with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.[18]
In her testimony it was also evident that
Ms. Binanay kept the fact about the will from
petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive
of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seo
Vda. de Ramonal.
In the testimony of Ms. Binanay, the
following were established:
Q. Now, in 1978 Matilde Seno Vda de
Ramonal was not yet a sickly person is
that correct?
A. Yes, sir.
Q. She was up and about and was still
uprightly and she could walk agilely and
she could go to her building to collect
rentals, is that correct?
A. Yes, sir.[19]
xxx
Q. Now, let us go to the third signature of
Matilde Ramonal. Do you know that
there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is
continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda
de Ramonal the letter L in Matilde is
continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.[20]
xxx
Q. Now, that was 1979, remember one year
after the alleged holographic will. Now,
you identified a document marked as
Exhibit R. This is dated January 8,1978
which is only about eight months from
August 30,1978. Do you notice that the
signature Matilde Vda de Ramonal is
beautifully written and legible?
A. Yes, sir the handwriting shows that she
was very exhausted.
Q. You just say that she was very exhausted
while that in 1978 she was healthy was
not sickly and she was agile. Now, you
said she was exhausted?
A. In writing.
Q. How did you know that she was
exhausted when you were not present
and you just tried to explain yourself out
because of the apparent
inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature
dated 1978, the same year as the
alleged holographic will. In exhibit I, you
will notice that there is no retracing;
there is no hesitancy and the signature
was written on a fluid movement. x x x
And in fact , the name Eufemia R.
Patigas here refers to one of the
petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is
not only with the questioned signature
appearing in the alleged holographic will
marked as Exhibit X but in the
handwriting themselves, here you will
notice the hesitancy and tremors, do
you notice that?
A. Yes, sir.[21]
Evangeline Calugay declared that the
holographic will was written, dated and signed
in the handwriting of the testator. She testified
that:
Q. You testified that you stayed with the
house of the spouses Matilde and Justo
Ramonal for the period of 22
years. Could you tell the court the
services if any which you rendered to
Matilde Ramonal?
A. During my stay I used to go with her to
the church, to the market and then to
her transactions.
Q. What else? What services that you
rendered?
A. After my college days I assisted her in
going to the bank, paying taxes and to
her lawyer.
Q. What was your purpose of going to her
lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did
you acquire familiarity of the handwriting
of Matilde Vda de Ramonal?
A. Yes, sir.
60
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]
Page
 xxx
Q. Now, I am showing to you Exhibit S
which is captioned tugon dated Agosto
30, 1978 there is a signature here below
item No. 1, will you tell this court whose
signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]
So, the only reason that Evangeline can
give as to why she was familiar with the
handwriting of the deceased was because she
lived with her since birth. She never declared
that she saw the deceased write a note or sign
a document.
The former lawyer of the deceased, Fiscal
Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my
godmother the husband is my
godfather. Actually I am related to the
husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]
xxx
Q. Can you tell this court whether the
spouses Justo Ramonal and Matilde
Ramonal have legitimate children?
A. As far as I know they have no legitimate
children.[25]
xxx
Q. You said after becoming a lawyer you
practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the
deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition,
of properties.
Q. When you said assisted, you acted as
her counsel? Any sort of counsel as in
what case is that, Fiscal?
A. It is about the project partition to
terminate the property, which was under
the court before.[26]
xxx
Q. Appearing in special proceeding no. 427
is the amended inventory which is
marked as exhibit N of the estate of
Justo Ramonal and there appears a
signature over the type written word
Matilde vda de Ramonal, whose
signature is this?
A. That is the signature of Matilde Vda de
Ramonal.
Q. Also in exhibit n-3, whose signature is
this?
A. This one here that is the signature of Mrs.
Matilde vda de Ramonal.[27]
xxx
Q. Aside from attending as counsel in that
Special Proceeding Case No. 427 what
were the other assistance wherein you
were rendering professional service to
the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her
in other matters but if there are
documents to show that I have assisted
then I can recall.[28]
xxx
Q. Now, I am showing to you exhibit S which
is titled tugon, kindly go over this
document, Fiscal Waga and tell the
court whether you are familiar with the
handwriting contained in that document
marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal,
whose signature is this?
A. I think this signature here it seems to be
the signature of Mrs. Matilde vda de
Ramonal.
Q. Now, in item No. 2 there is that signature
here of Matilde Vda de Ramonal, can
you tell the court whose signature is
this?
A. Well, that is similar to that signature
appearing in the project of partition.
Q. Also in item no. 3 there is that signature
Matilde Vda de Ramonal, can you tell
the court whose signature is that?
A. As I said, this signature also seems to be
the signature of Matilde vda de
Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it
is being written.
Q. How about this signature in item no. 4,
can you tell the court whose signature is
this?
A. The same is true with the signature in
item no. 4. It seems that they are
similar.[29]
xxx
Q. Mr. Prosecutor, I heard you when you
said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems
to be the signature of Matilde vda de
Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the
signature of Matilde vda de
Ramonal. You are merely supposing
that it seems to be her signature
because it is similar to the signature
of the project of partition which you
have made?
A. That is true.[30]
From the testimonies of these witnesses,
the Court of Appeals allowed the will to probate
and disregard the requirement of three
61
witnesses in case of contested holographic will,
citing the decision in Azaola vs.
Page
Singson,[31] ruling that the requirement is ordered remanded to the court of origin with
merely directory and not mandatory. instructions to allow petitioners to adduce
In the case of Ajero vs. Court of evidence in support of their opposition to the
Appeals,[32] we said that the object of the probate of the holographic will of the deceased
solemnities surrounding the execution of wills Matilde Seo Vda. de Ramonal.
is to close the door against bad faith and fraud, No costs.
to avoid substitution of wills and testaments SO ORDERED.
and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail
the exercise of the right to make a will.
However, we cannot eliminate the
possibility of a false document being adjudged
as the will of the testator, which is why if the
holographic will is contested, that law requires
three witnesses to declare that the will was in
the handwriting of the deceased.
The will was found not in the personal
belongings of the deceased but with one of the
respondents, who kept it even before the death
of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her
possession as early as 1985, or five years
before the death of the deceased.
There was no opportunity for an expert to
compare the signature and the handwriting of
the deceased with other documents signed and
executed by her during her lifetime. The only
chance at comparison was during the cross-
examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the
documents which contained the signature of
the deceased with that of the holographic will
and she is not a handwriting expert. Even the
former lawyer of the deceased expressed
doubts as to the authenticity of the signature in
the holographic will.
A visual examination of the holographic will
convince us that the strokes are different when
compared with other documents written by the
testator. The signature of the testator in some
of the disposition is not readable. There were
uneven strokes, retracing and erasures on the
will.
Comparing the signature in the holographic
will dated August 30, 1978,[33] and the
signatures in several documents such as the
application letter for pasture permit dated
December 30, 1980,[34] and a letter dated June
16, 1978,[35] the strokes are different. In the
letters, there are continuous flows of the
strokes, evidencing that there is no hesitation
in writing unlike that of the holographic
will. We, therefore, cannot be certain that the
holographic will was in the handwriting by the
deceased.
62

IN VIEW WHEREOF, the decision

appealed from is SET ASIDE. The records are
Page
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO
APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-
appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the
Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of
Court.
As found by the Court of Appeals:
... On January 11, 1977,
appellant filed a petition with the
Court of First Instance of Rizal for
the probate of the holographic will
of Ricardo B. Bonilla and the
issuance of letters testamentary
in her favor. The petition,
docketed as Sp. Proc. No. 8432,
was opposed by the appellees
Amparo Aranza Bonilla, Wilferine
Bonilla Treyes Expedita Bonilla
Frias and Ephraim Bonilla on the
following grounds:
(1) Appellant was estopped from
claiming that the deceased left a
will by failing to produce the will
within twenty days of the death of
the testator as required by Rule
75, section 2 of the Rules of
Court;
(2) The alleged copy of the
alleged holographic will did not
contain a disposition of property
after death and was not intended
to take effect after death, and
therefore it was not a will
(3) The alleged hollographic will
itself,and not an alleged copy
thereof, must be produced,
otherwise it would produce no
effect, as held in Gam v. Yap,
104 Phil. 509; and
(4 ) The deceased did not leave
any will, holographic or
otherwise, executed and attested
as required by law.
The appellees likewise moved for
the consolidation of the case with
another case Sp. Proc. No,
8275). Their motion was granted
by the court in an order dated
April 4, 1977.
On November 13, 1978, following
the consolidation of the cases,
the appellees moved again to
dismiss the petition for the
probate of the will. They argued
that:
(1) The alleged holographic was
not a last will but merely an
instruction as to the management
and improvement of the schools
and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic
wills cannot be proved by
secondary evidence unlike
ordinary wills.
Upon opposition of the appellant,
the motion to dismiss was denied
by the court in its order of
February 23, 1979.
The appellees then filed a motion
for reconsideration on the ground
that the order was contrary to law
and settled pronouncements and
rulings of the Supreme Court, to
which the appellant in turn filed
an opposition. On July 23, 1979,
the court set aside its order of
February 23, 1979 and dismissed
the petition for the probate of the
will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion
that once the original copy of the
holographic will is lost, a copy
thereof cannot stand in lieu of the
original.
In the case of Gam vs. Yap, 104
Phil. 509, 522, the Supreme
Court held that 'in the matter of
holographic wills the law, it is
reasonable to suppose, regards
the document itself as the
material proof of authenticity of
said wills.
MOREOVER, this Court notes
that the alleged holographic will
was executed on January 25,
1962 while Ricardo B. Bonilla
died on May 13, 1976. In view of
the lapse of more than 14 years
from the time of the execution of
the will to the death of the
decedent, the fact that the
original of the will could not be
located shows to our mind that
the decedent had discarded
before his death his allegedly
missing Holographic Will.
63
Appellant's motion for reconsideration was
denied. Hence, an appeal to the Court of
Page
Appeals in which it is contended that the handwriting of the deceased can be
dismissal of appellant's petition is contrary to determined by the probate court.
law and well-settled jurisprudence. WHEREFORE, the order of the lower court
On July 7, 1980, appellees moved to forward dated October 3, 1979, denying appellant's
the case to this Court on the ground that the motion for reconsideration dated August 9,
appeal does not involve question of fact and 1979, of the Order dated July 23, 1979,
alleged that the trial court committed the dismissing her petition to approve the will of
following assigned errors: the late Ricardo B. Bonilla, is hereby SET
I. THE LOWER COURT ERRED ASIDE.
IN HOLDING THAT A LOST SO ORDERED.
HOLOGRAPHIC WILL MAY NOT
BE PROVED BY A COPY
THEREOF;
II. THE LOWER COURT ERRED
IN HOLDING THAT THE
DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED
IN DISMISSING APPELLANT'S
WILL.
The only question here is whether a
holographic will which was lost or cannot be
found can be proved by means of a photostatic
copy. Pursuant to Article 811 of the Civil Code,
probate of holographic wills is the allowance of
the will by the court after its due execution has
been proved. The probate may be uncontested
or not. If uncontested, at least one Identifying
witness is required and, if no witness is
available, experts may be resorted to. If
contested, at least three Identifying witnesses
are required. However, if the holographic will
has been lost or destroyed and no other copy
is available, the will can not be probated
because the best and only evidence is the
handwriting of the testator in said will. It is
necessary that there be a comparison between
sample handwritten statements of the testator
and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may
be allowed because comparison can be made
with the standard writings of the testator. In the
case of Gam vs. Yap, 104 PHIL. 509, the Court
ruled that "the execution and the contents of a
lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who
have seen and/or read such will. The will itself
must be presented; otherwise, it shall produce
no effect. The law regards the document itself
as material proof of authenticity." But, in
Footnote 8 of said decision, it says that
"Perhaps it may be proved by a photographic
or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of
the deceased may be exhibited and tested
before the probate court," Evidently, the
photostatic or xerox copy of the lost or
64

destroyed holographic will may be admitted

because then the authenticity of the
Page
G.R. Nos. 75005-06 February 15, 1990
JOSE RIVERA petitioner,
vs.
INTERMEDIATE APPELLATE COURT and
ADELAIDO J. RIVERA, respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.
CRUZ, J.:
Was there only one Venancio Rivera in
Mabalacat, Pampanga, or were there two?
On May 30, 1975, a prominent and wealthy
resident of that town named Venancio Rivera
died. On July 28, 1975, Jose Rivera, claiming
to be the only surviving legitimate son of the
deceased, filed a petition for the issuance of
letters of administration over Venancio's estate.
Docketed as SP No. 1076, this petition was
opposed by Adelaido J. Rivera, who denied
that Jose was the son of the decedent.
Adelaido averred that Venancio was his father
and did not die intestate but in fact left two
holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed,
also with the Regional Trial Court of Angeles
City, a petition for the probate of the
holographic wills. Docketed as SP No. 1091,
this petition was in turn opposed by Jose
Rivera, who reiterated that he was the sole heir
of Venancio's intestate estate. 2
On November 11, 1975, the two cases were
consolidated. Adelaido J. Rivera was later
appointed special administrator. After joint trial,
Judge Eliodoro B. Guinto found that Jose
Rivera was not the son of the decedent but of a
different Venancio Rivera who was married to
Maria Vital. The Venancio Rivera whose estate
was in question was married to Maria Jocson,
by whom he had seven children, including
Adelaido. Jose Rivera had no claim to this
estate because the decedent was not his
father. The holographic wills were also
admitted to probate.3
On appeal, the decision of the trial court was
affirmed by the then Intermediate Appellate
Court. 4 Its decision is now the subject of this
petition, which urges the reversal of the
respondent court.
In support of his claim that he was the sole heir
of the late Venancio Rivera, Jose sought to
show that the said person was married in 1928
to Maria Vital, who was his mother. He
submitted for this purpose Exhibit A, the
marriage certificate of the couple, and Exhibit
B, his own baptismal certificate where the
couple was indicated as his parents. The
petitioner also presented Domingo Santos,
who testified that Jose was indeed the son of
the couple and that he saw Venancio and Jose
together several times. 5 Jose himself stressed
that Adelaido considered him a half-brother
and kissed his hand as a sign of respect
whenever they met. He insisted that Adelaido
and his brothers and sisters were illegitimate
children, sired by Venancio with Maria
Jocson. 6
Adelaido, for his part, maintained that he and
his brothers and sisters were born to Venancio
Rivera and Maria Jocson, who were legally
married and lived as such for many years. He
explained that he could not present his parents'
marriage certificate because the record of
marriages for 1942 in Mabalacat were
destroyed when the town was burned during
the war, as certified by Exhibit 6. 7 He also
submitted his own birth certificate and those of
his sisters Zenaida and Yolanda Rivera, who
were each described therein as the legimitate
children of Venancio Rivera and Maria
Jocson. 8 Atty. Regalado P. Morales, then 71
years of age, affirmed that he knew the
deceased and his parents, Magno Rivera and
Gertrudes de los Reyes, and it was during the
Japanese occupation that Venancio introduced
to him Maria Jocson as his wife. 9 To prove that
there were in fact two persons by the same
name of Venancio Rivera, Adelaido offered
Venancio Rivera's baptismal certificate
showing that his parents were Magno Rivera
and Gertrudes de los Reyes, 10as contrasted
with the marriage certificate submitted by Jose,
which indicated that the Venancio Rivera
subject thereof was the son of Florencio Rivera
and Estrudez Reyes. 11 He also denied kissing
Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his
parents' marriage certificate because, as he
explained it, the marriage records for 1942 in
the Mabalacat civil registry were burned during
the war. Even so, he could still rely on the
presumption of marriage, since it is not denied
that Venancio Rivera and Maria Jocson lived
together as husband and wife for many years,
begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions
favor the solidarity of the family.
Thus every intendment of the law
or fact leans toward the validity of
marriage, the indissolubility of the
marriage bonds, the legitimacy of
children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable
presumptions. — The following
presumptions are satisfactory if
uncontradicted, but may be
contradicted and overcome by
other evidence:
65
xxx xxx xxx
Page
 (aa) That a man and woman
deporting themselves as husband
and wife have entered into a
lawful contract of marriage.
By contrast, although Jose did present his
parents' marriage certificate, Venancio was
described therein as the son of Florencio
Rivera. Presumably, he was not the same
Venancio Rivera described in Exhibit 4, his
baptismal certificate, as the son of Magno
Rivera. While we realize that such baptismal
certificate is not conclusive evidence of
Venancio's filiation (which is not the issue here)
it may nonetheless be considered to determine
his real identity. Jose insists that Magno and
Florencio are one and the same person,
arguing that it is not uncommon for a person to
be called by different names. The Court is not
convinced. There is no evidence that
Venancio's father was called either Magno or
Florencio. What is more likely is that two or
more persons may live at the same time and
bear the same name, even in the same
community. That is what the courts below
found in the cases at bar.
What this Court considers particularly intriguing
is why, if it is true that he was the legitimate
son of Venancio Rivera, Jose did not assert his
right as such when his father was still alive. By
his own account, Jose supported himself —
and presumably also his mother Maria Vital —
as a gasoline attendant and driver for many
years. All the time, his father was residing in
the same town — and obviously prospering —
and available for support. His alleged father
was openly living with another woman and
raising another family, but this was apparently
accepted by Jose without protest, taking no
step whatsoever to invoke his status. If, as he
insists, he and Venancio Rivera were on
cordial terms, there is no reason why the father
did not help the son and instead left Jose to
fend for himself as a humble worker while his
other children by Maria Jocson enjoyed a
comfortable life. Such paternal discrimination is
difficult to understand, especially if it is
considered — assuming the claims to be true
— that Jose was the oldest and, by his own
account, the only legitimate child of Venancio
Rivera.
And there is also Maria Vital, whose attitude is
no less incomprehensible. As Venancio's
legitimate wife — if indeed she was — she
should have objected when her husband
abandoned her and founded another family by
another woman, and in the same town at that.
Seeing that the children of Maria Jocson were
being raised well while her own son Jose was
practically ignored and neglected, she
nevertheless did not demand for him at least
support, if not better treatment, from his
legitimate father. It is unnatural for a lawful wife
to say nothing if she is deserted in favor of
another woman and for a caring mother not to
protect her son's interests from his wayward
father's neglect. The fact is that this forsaken
wife never demanded support from her wealthy
if errant husband. She did not file a complaint
for bigamy or concubinage against Venancio
Rivera and Maria Jocson, the alleged partners
in crime and sin. Maria Vital was completely
passive and complaisant.
Significantly, as noted by the respondent court,
Maria Vital was not even presented at the trial
to support her son's allegations that she was
the decedent's lawful wife. Jose says this was
not done because she was already old and
bedridden then. But there was no impediment
to the taking of her deposition in her own
house. No effort was made toward this end
although her testimony was vital to the
petitioner's cause. Jose dismisses such
testimony as merely "cumulative," but this
Court does not agree. Having alleged that
Maria Jocson's marriage to Venancio Rivera
was null and void, Jose had the burden of
proving that serious allegation.
We find from the evidence of record that the
respondent court did not err in holding that the
Venancio Rivera who married Maria Jocson in
1942 was not the same person who married
Maria Vital, Jose's legitimate mother, in 1928.
Jose belonged to a humbler family which had
no relation whatsoever with the family of
Venancio Rivera and Maria Vital. This was
more prosperous and prominent. Except for the
curious Identity of names of the head of each,
there is no evidence linking the two families or
showing that the deceased Venancio Rivera
was the head of both.
Now for the holographic wills. The respondent
court considered them valid because it found
them to have been written, dated and signed
by the testator himself in accordance with
Article 810 of the Civil Code. It also held there
was no necessity of presenting the three
witnesses required under Article 811 because
the authenticity of the wills had not been
questioned.
The existence and therefore also the
authenticity of the holographic wills were
questioned by Jose Rivera. In his own petition
in SP No. 1076, he declared that Venancio
Rivera died intestate; and in SP No. 1091, he
denied the existence of the holographic wills
presented by Adelaido Rivera for probate. In
both proceedings, Jose Rivera opposed the
holographic wills submitted by Adelaido Rivera
and claimed that they were spurious.
Consequently, it may be argued, the
66
respondent court should have applied Article
811 of the Civil Code, providing as follows:
Page
 In the probate of a holographic
will, it shall be necessary that at
least one witness who knows the
handwriting and signature of the
testator explicitly declare that the
will and the signature are in the
handwriting of the testator. If the
will is contested, at least three of
such witnesses shall be required.
The flaw in this argument is that, as we have
already determined, Jose Rivera is not the son
of the deceased Venancio Rivera whose estate
is in question. Hence, being a mere stranger,
he had no personality to contest the wills and
his opposition thereto did not have the legal
effect of requiring the three witnesses. The
testimony of Zenaida and Venancio Rivera, Jr.,
who authenticated the wills as having been
written and signed by their father, was
sufficient.
WHEREFORE, the petition is DENIED and the
challenged decision is AFFIRMED, with costs
against the petitioner.
SO ORDERED.

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