IN THE MATTER OF THE SUMMARY SETTLEMENT OF THE ESTATE OF THE

DECEASED ANACLETA ABELLANA. LUCIO BALONAN V. EUSEBIA

ABELLANA, ET AL.
G.R. No. L-15153. August 31, 1960
LABRADOR, J.

DOCTRINE: A will subscribed at the end thereof by some person other than the testator
in such manner that the signature of said person appears above the typewritten statement
"Por la Testadora Anacleta Abellana . . . Ciudad de Zamboanga," may not be admitted to
probate for failure to comply with the express requirement of the law that the testator
must himself sign the will or that his name be affixed thereto by some other person in his
presence and by his express direction.

FACTS: The last Will and Testament is written in the Spanish language and consists of
two (2) typewritten pages double space. The first page is signed by Juan Bello and under
his name appears typewritten ‘Por la testadora Anacleta Abellana, residence Certificate
A-1167629, Enero 20, 1951, Ciudad de Zamboanga’, and on the second page appears the
signature of the three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below
his signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear the
signatures of the instrumental witnesses. On the second page, which is the last page of
the said last Will and Testament, also appears the signature of the three (3) instrumental
witnesses and on that second page on the left margin appears the signature of Juan Bello
under whose name appears handwritten the following phrase, ‘Por la Testadora Anacleta
Abellana’. The will is duly acknowledged before Notary Public, Attorney Timoteo de los
Santos.

ISSUE: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la
Testadora Anacleta Abellana” comply with the requirements of the law prescribing the
manner in which a will shall be executed?

RULING: NO. The present law, Article 805 of the Civil Code, in part provides as follows:
"Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself 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 clause "must be subscribed at the end thereof by the testator himself or by the
testator’s name written by some other person in his presence and by his express
direction," is practically the same as the provisions of Section 618 of the Code of Civil
Procedure (Act No. 190) which reads as follows: "No will, except as provided in the
preceding section shall be valid to pass any estate, real or personal, nor charge or affect
the same, unless it be in writing and signed by the testator, or by the testator’s name
written by some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of
each other. . . ."

Article 618 of the Old Civil Code as well as Article 805 of the New Civil Code require
that the testator himself sign the will, or if he cannot do so, the testator’s name must be
written by some other person in his presence and by his express direction.

Here, the name of the testatrix, Anacleta Abellana, does not appear written under the will
by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply
with the express requirement in the law that the testator must himself sign the will, or
that his name be affixed thereto by some other person in his presence and by his express
direction.

ROMAN ABAYA vs. DONATA ZALAMERO

G.R. No. L-3907 March 12, 1908
TORRES, J.:

Facts:

Roman Abaya filed a petition for the allowance of the will executed by Juan Zalamero
which was written in Tagalog dialect. Donata Zalamero opposed the petition alleging
among others that will was not executed and signed in accordance with the provisions of
section 618 of the Code of Civil Procedure. The court refused to admit the will.

Issue: Was the will executed in accordance with the requirements established by the law
in force?

Held: YES.

The will in question was executed with the requirements established by the law in force.
It is shown by the evidence, and by the will itself, that for the reasons set forth by the
testator and at his own request, one of the witnesses to the will, Mariano Zaguirre, wrote
with his own hand the name and surname of Juan Zalamero, the testator, and his
presence, and that the latter put a cross between them and a note stating that what had
been written before the name and surname of the said Juan Zalamero, with the cross
placed at the foot thereof, was his testament and contained his last will as stated by him
when he directed the execution thereof in the presence of the three witnesses who
subscribed it in his presence, and in the presence of each other.

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

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

G.R. No. 1641 January 19, 1906

GERMAN JABONETA,
vs.
RICARDO GUSTILO, ET AL.,
CARSON, J.:
Facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the following
circumstances the document in question, which has been presented for probate as his
will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as his will. They were all
together, and were in the room where Jaboneta was, and were present when he signed
the document, Isabelo Jena signing afterwards as a witness, at his request, and in his
presence and in the presence of the other two witnesses. Aniceto Jalbuena then signed
as a witness in the presence of the testator, and in the presence of the other two persons
who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took
his hat and left the room. As he was leaving the house Julio Javellana took the pen in his
hand and put himself in position to sign the will as a witness, but did not sign in the
presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator and of the witness Aniceto
Jalbuena.

Issue:
Whether the signature of the testator was made in the presence of the witness?

Held:
Yes, The fact that Jena was still in the room when he saw Javellana moving his hand
and pen in the act of affixing his signature to the will, taken together with the testimony
of the remaining witnesses which shows that Javellana did in fact there and then sign
his name to the will, convinces us that the signature was affixed in the presence of Jena.
The fact that he was in the act of leaving, and that his back was turned while a portion
of the name of the witness was being written, is of no importance. He, with the other
witnesses and the testator, had assembled for the purpose of executing the testament,
and were together in the same room for that purpose, and at the moment when the
witness Javellana signed the document he was actually and physically present and in
such position with relation to Javellana that he could see everything which took place
by merely casting his eyes in the proper direction, and without any physical obstruction
to prevent his doing so, therefore we are of opinion that the document was in fact
signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence of the
testator is said to be that the testator may have ocular evidence of the identity of the
instrument subscribed by the witness and himself, and the generally accepted tests of
presence are vision and mental apprehension.
Maravilla v. Maravilla, G.R. No. L-23225, February 27, 1971 (37 SCRA 672)

DOCTRINE:

In weighing the testimony of the attesting witnesses to a will, the statements of a competent
attorney, who has been charged with the responsibility of seeing to the proper execution of the
instrument, is entitled to greater weight than the testimony of a person casually called to
participate in the act, supposing of course that no motive is revealed that should induce the
attorney to prevaricate. The reason is that the mind of the attorney, being conversant with the
requisites of proper execution of the instrument, is more likely to become fixed on details, and he
is more likely than other persons to retain those incidents in his memory

FACTS:

Appellant Herminio Maravilla, probate petitioner and husband of the decedent, died on
16 July 1966, after the case was submitted for decision. Upon motion for intervention filed
by Concepcion Maravilla Kohlhaas and Rose Mary Kohlhaas, this Supreme Court
allowed their intervention on 24 July 1967, upon showing that their interest as substitute
heirs was vested definitely upon the death of Herminio Maravilla, and that said movants
for intervention merely adopt the pleadings and briefs filed in behalf of the deceased
Herminio Maravilla so that the intervention will not delay the disposition of the case.

Herminio Maravilla’s petition for probate was opposed by the appellees

Pedro, Asuncion and Regina, all surnamed "Maravilla," who are allegedly the brother
and sisters of the deceased Digna Maravilla, in an amended opposition filed in the course
of the trial in the court. The Oppositors alleged that the deceased the alleged testatrix and
the instrumental witnesses did not sign the alleged will, each and every page thereof, in
the presence of each other. That Digna affixed her signature on the will under undue and
improper pressure and she was not of sound mind. That the said will had already been
revoked by the deceased.

After trial, the court rendered judgment, holding as unsubstantiated the last three (3)
grounds above-enumerated, but sustaining the first, that is, that the will was not executed
in accordance with Section 618 of Act 190, and, therefore, denied the probate of the will.
The petitioner and one Adelina Sajro, who was named a devisee under the questioned
will, appealed the judgment.

The late Digna Maravilla died in Manapla, Negros Occidental, on 12 August 1958, leaving
an extensive estate. It is undisputed that, at the time of the probate proceedings, only one
(1) (Aquilino Mansueto) of the three (3) attesting witnesses to the will had survived, the
two (2) others (Timoteo Hernaez and Mariano Buenaflor) having died previously. The
will submitted for probate, Exhibit "A," which is typewritten in the Spanish language,
purports to have been executed in Manila on the 7th day of October, 1944; it consists of
five (5) pages, including the page on which the attestation clause was completed. The
purported signatures of the testatrix appear at the logical end of the will on page four and
at the left margin of all the other pages.

During the hearing, Col. Mansueto identified his own signature and those of Dr. Timoteo
Hernaez and of Digna Maravilla, and asserted that the latter did sign in the presence of
all three witnesses and Atty. Villanueva. The witness explained that he could not
remember some details because fourteen years had elapsed, and when he signed as a
witness, he did not give it any importance and because of the time he (Col. Mansueto)
was very worried because of rumours that the Japanese Kempeitai would arrest officers
of the USAFFE who did not want to collaborate.

Atty. Manuel Villanueva, as third witness for the proponent asserted that he had been
the lawyer of the Maravillas; that 5 or 6 days before 7 October 1944 he had been
summoned through Mariano Buenaflor to the house of the Maravillas and there met
Digna who requested him to draft a new will, revoking her old one, to include as
additional beneficiaries Adelina Sajo, Concepcion Maravilla, and the latter’s youngest
daughter, Rose Mary Kohlhaas, who lived with her (Digna) and whom she considered as
her real children, having cared for them since childhood. Digna gave Villanueva
instructions concerning the will, and handed him her old will and a handwritten list of
the certificates of title of her properties, which list she asked and obtained from her
husband. Before leaving, Villanueva asked Digna to look for three witnesses. Upon the
evidence, the trial judge concluded that Mansueto did not actually see Digna Maravilla
sign the will in question, basing such conclusion upon the fact that while Mansueto
positively identified his own signature

ISSUE:

Should the court give credit to the testimony of Atty. Manuel Villanueva?

RULING: YES

That Mansueto, Hernaez and Buenaflor, together with the testatrix and the lawyer, sat
next to one another around one table when the will was signed is clearly established by
the uncontradicted testimony of both attorney Villanueva and Herminio Maravilla; and
that detail proves beyond doubt that each one of the parties concerned did sign in the
presence of all the others. It should be remembered, in this connection, that the test is not
whether a witness did see the signing of the will but whether he was in a position to see
if he chose to do so.
The trial court rejected the evidence of both Herminio Maravilla and Manuel Villanueva,
giving as a reason that they were biased and interested in having the probate succeed.
The reasoning is not warranted for Herminio Maravilla certainly stood to gain more
under the previous will of his wife where he was made the sole beneficiary, As to attorney
Villanueva, while he had been a friend of Herminio from boyhood, he also had been the
family lawyer, and his intervention in the execution of the will of one of his clients became
inevitable, for it is not to be expected that the testatrix should call upon a stranger for the
purpose. If Villanueva wished to perjure in favor of Herminio, all he needed was to color
his testimony against the due execution of the will (and not in favor thereof, since, as
previously observed, Digna’s first will was more advantageous to the widower.

It is hardly conceivable that any attorney of any standing would risk his professional
reputation by falsifying a will and then go before a court and give false testimony.

"‘In weighing the testimony of the attesting witnesses to a will, the statements of a
competent attorney, who has been charged with the responsibility of seeing to the proper
execution of the instrument, is entitled to greater weight than the testimony of a person
casually called to participate in the act, supposing of course that no motive is revealed
that should induce the attorney to prevaricate. The reason is that the mind of the attorney,
being conversant with the requisites of proper execution of the instrument, is more likely
to become fixed on details, and he is more likely than other persons to retain those
incidents in his memory.’"

The court is satisfied that the preponderance of evidence is to the effect that the testament
was duly executed by a qualified testatrix and competent witnesses, in conformity with
the statutory requirements. The decree of the court denying probate of the 1944 will of
Digna Maravilla is reversed and the said testament is hereby ordered probated.

The variation in the expressions used by the witness is the best evidence that he was being
candid and careful, and it is a clear badge of truthfulness rather than the reverse.
A will may be allowed even if some witnesses not remember having attested it, if other
evidence satisfactorily show due execution (V. Act 190, Section 632), and that failure of
witness to identify his signature does not bar probate.

It should be remembered, in this connection, that the test is not whether a witness did see
the signing of the will but whether he was in a position to see if he chose to do so.

In weighing the testimony of the attesting witnesses to a will, the statements of a

competent attorney, who has been charged with the responsibility of seeing to the proper
execution of the instrument, is entitled to greater weight than the testimony of a person
casually called to participate in the act, supposing of course that no motive is revealed
that should induce the attorney to prevaricate. The reason is that the mind of the attorney,
being conversant with the requisites of proper execution of the instrument, is more likely
to become fixed on details, and he is more likely than other persons to retain those
incidents in his memory.
To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties or that his mind be wholly unbroken, unimpaired or unshattered by
disease, injury or other cause.

NAYVE vs. MOJAL

December 29, 1924

FACTS: The defects attributed to the will are:

(a) not having been signed by the testator and the witnesses on each and every sheet on
the left margin;
(b) the sheets of the document not being paged with letters;
(c) the attestation clause does not state the number of sheets or pages actually used of the
will; and
(d) the testator does not appear to have signed all the sheets in the presence of the 3
witnesses, and the latter to have attested and signed all the sheets in the presence of the
testator and of each other.

HELD:
(a) As each and every page used of the will bears the signatures of the testator and the
witnesses, the fact that said signatures do not all appear on the left margin of each page
does not detract from the validity of the will.
(b) Paging with Arabic numerals and not with letters is within the spirit of the law,
and is just as valid as paging with letters.
(c) The last paragraph of the will in question and the attestation clause, coming next to it,
are of the following tenor:
"In witness whereof, I set my hand unto this will here in the town of Camalig, Albay,
Philippine Islands, this 26th day of November, nineteen hundred and eighteen,
composed of four sheets, including the next X X X"
The number of sheets is stated in said last paragraph of the will. The attestation clause
must state the number of sheets or pages composing the will; but when, as in the case
before us, such fact, while it is not stated in the attestation clause, appears at the end
of the will proper, so that no proof aliunde is necessary of the number of the sheets of
the will, then there can be no doubt that it complies with the intention of the law that
the number of sheets of which the will is composed be shown by the document itself, to
prevent the number of the sheets of the will from being unduly increased or decreased.
(d) The attestation clause above set out it is said that the testator signed the will "in the
presence of each of the witnesses" and the latter signed "in the presence of each other and
of the testator." So that, as to whether the testator and the attesting witnesses saw each
other sign the will, such a requirement was clearly and sufficiently complied with. What
is not stated in this clause is whether the testator and the witnesses signed all the sheets
of the will.

The fact of the testator and the witnesses having signed all the sheets of the will may
be proven by the mere examination of the document, although it does not say anything
about this, and if that is the fact, as it is in the instant case, the danger of fraud in this
respect, which is what the law tries to avoid, does not exist.

In re Estate Saguinsin – c/c ms. Guinzon

Avera vs. Garcia and Rodriguez

GR. No. 15566. September 14, 1921

Facts:
Eutiquia Avera filed a petition for the probate of the will of one Esteban Garcia.
Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors
Jose Garcia and Cesar Garcia contested the probate.
 One of the attesting witnesses testified that the will was executed with
all necessary external formalities, and that the testator was at the time in full possession
of disposing faculties.

Two of the attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will.

The signature of the testator and of the three attesting witnesses are written on the
right margin of each page of the will instead of the left margin.

Issue:
Does it make the will void when the testator and the witnesses sign on the right
margin instead of left? NO.

Held:

A will otherwise properly executed in accordance with the requirements of

existing law is not rendered invalid by the fact that the paginal signatures of the testator
and attesting witnesses appear in the right margin instead of the left.

[G.R. No. L-20357. November 25, 1967.]

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF

GREGORIO GATCHALIAN, deceased. PEDRO REYES GARCIA, Petitioner-
Appellant, v. FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA,
FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G.
TALANAY, Oppositors-Appellees.

E. Debuque for Petitioner-Appellant.

E. L. Segovia for oppositors-appellees.

Case digest:
Facts: 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 C. 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.

Issue: Is the acknowledgment by testator and witness before a notary public required?

Held: Yes, 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.

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. Compliance with the requirement contained in the above legal provision to
the effect that a will must be acknowledged before a notary public by the testator and
also by the witnesses is indispensable for its validity (In re: Testate Estate of Alberto,
G.R. No. L-11948, April 29, 1959). As the document under consideration does not
comply with this requirement, it is obvious that the same may not be probated.

ARTICLE 807.
GARCIA V. VASQUEZ
FACTS: Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or sister. At the time of her
death, she was said to be 90 years old more or less. On 17 September 1965, Consuelo S.
Gonzales Vda. de Precilla, a niece of the deceased, petitioned for probate of the alleged
last will and testament of Gliceria. The petition was opposed separately by several groups
of alleged heirs claiming to be relatives of Doña Gliceria within the fifth civil degree
alleging that the formalities required by law for such execution have not been complied
with. The Court issued an order admitting to probate the 1960 will of Gliceria. The
oppositors-appellants in the present case, however, challenging the correctness of the
probate court’s ruling, maintain that on 29 December 1960 the eyesight of Gliceria del
Rosario was so poor and defective that she could not have read the provisions of the will.
ISSUE: Is the will valid?
HELD: No. The foregoing testimony of the ophthalmologist who treated the deceased
and, therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the operation and
removal of the cataract in her left eye and her being fitted with aphakic lens (used by
cataract patients), her vision remained mainly for viewing distant objects and not for
reading print. Thus, the conclusion is inescapable that with the condition of her eyesight
in August, 1960, and there is no evidence that it had improved by 29 December 1960,
Gliceria del Rosario was incapable f reading, and could not have read the provisions of
the will supposedly signed by her on 29 December 1960. It is worth noting that the
instrumental witnesses stated that she read the instrument "silently".
Upon its face, the testamentary provisions, the attestation clause and acknowledgment
were crammed together into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper, leaving no margin
whatsoever. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa"
;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", and
"acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that
so important a document containing the final disposition of one’s worldly possessions
should be embodied in an informal and untidily written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually retained the ability to
read the purported will and had done so. The record is thus convincing that the supposed
testatrix could not have physically read or understood the alleged testament, and that its
admission to probate was erroneous and should be reversed.
The due execution of her will would have required observance of the provisions of Article
808 of the Civil Code. However, there is nothing in the records to show that the above
requisites have been complied with.

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.L
Facts:
On 5 November 1977, 79-year old Brigido Alvarado executed a notarial wherein he
disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly revoked a
previously executed holographic will at the time awaiting probate before the RTC of
Laguna.
According to Bayani Ma. Rino, private respondent, he was present when the said
notarial will was executed, together with three instrumental witnesses and the notary
public, where the testator did not read the will himself, suffering as he did from
glaucoma.
Rino, a lawyer, drafted the eight-page document and read the same aloud before the
testator, the three instrumental witnesses and the notary public, the latter four
following the reading with their own respective copies previously furnished them.
Thereafter, a codicil was executed changing some dispositions in the notarial will to
generate cash for the testator’s eye operation.
Said codicil was likewise not read by Brigido Alvarado and was read in the same
manner as with the previously executed will.
When the notarial will was submitted to the court for probate, Cesar Alvarado filed his
opposition as he said that the will was not executed and attested as required by law;
that the testator was insane or mentally incapacitated due to senility and old age; that
the will was executed under duress, or influence of fear or threats; that it was procured
by undue pressure and influence on the part of the beneficiary; and that the signature of
the testator was procured by fraud or trick.

Issue:
Was there substantial compliance to the reading of the will?

Held:
Yes, Article 808 not only applies to blind testators, but also to those who, for one reason
or another, are incapable of reading their wills. Hence, the will should have been read
by the notary public and an instrumental witness. However, the spirit behind the law
was served though the letter was not. In this case, there was substantial compliance.
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.
In this case, 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
subsequent thereto, the testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and acknowledgement
take place.
Caneda v. CA
GR No. 103554
May 28, 1993

FACTS: 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. 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.

Four months later, Mateo Caballero himself filed a petition seeking the probate of his last
will and testament. On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court. 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". 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. 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 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.

ISSUE: Whether the attestation clause contained in the last will and testament of the late
Mateo Caballero complies with the requirements of Article 805 of the Civil Code.
RULING: 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.

It will be noted that Article 805 requires that the witness should both attest and subscribe
to the will in the presence of the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to attest a will is to know
that it was published as such, and to certify the facts required to constitute an actual and
legal publication; but to subscribe a paper published as a will is only to write on the same
paper the names of the witnesses, for the sole purpose of identification.

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.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is
the fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of
each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided
for his signature and on the left-hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and
in the presence of each and all of us" may, at first blush, appear to likewise signify and
refer to the witnesses, it must, however, be interpreted as referring only to the testator
signing in the presence of the witnesses since said phrase immediately follows the words
"he has signed the same and every page thereof, on the spaces provided for his signature
and on the left hand margin." What is then clearly lacking, in the final logical analysis,
is the statement that the witnesses signed the will and every page thereof in the presence of the
testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in the disallowance of the will that
is here sought to be admitted to probate.

Cagro vs Cagro- c/o Mr. Pasaol

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF

DOROTEA PEREZ, (deceased): APOLONIO TABOADA, v. HON. AVELINO S.
ROSAL
G.R. No. L-36033 NOVEMBER 5,1992
GUTIERREZ, JR. J.:
FACTS:
Petitioner Apolonio Taboada filed a petition for probate of the will of the late
Dorotea perez. The will consisted of two pages, the first page containing all the
testamentary dispositions of the testator and was signed at the end or bottom of the page
by the testatrix alone and at the left hand margin by the three instrumental witnesses.
The second page consisted of the attestation clause and the acknowledgment was signed
at the end of the attestation clause by the three witnesses and at the left hand margin by
the testatrix. The trial court disallowed the will for want of formality in its execution
because the will was signed at the bottom of the page solely by the testatrix, while the
three witnesses only signed at the left hand margin of the page. The judge opined that
compliance with the formalities of the law required that the witnesses also sign at the end
of the will because the witnesses attest not only the will itself but the signature of the
testatrix. Hence, this petition.

ISSUE:
Was the object of attestation and subscription fully complied with when the instrumental
witnesses signed at the left margin of the sole page which contains all the testamentary
dispositions?
HELD:
YES.
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).
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).
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.