G.R. No. L-20357 November 25, 1967 IN THE MATTER OF THE PETITION FOR THE ALLO AN!

E OF THE ILL OF GREGORIO GAT!HALIAN, "e#e$%e". PE&RO RE'E( GAR!IA, petitioner-appellant, vs. FELIPE GAT!HALIAN, A)RORA G. !AMIN(, ANGELE( G. !O(!A, FE&ERI!O G. T)*OG, +IRGINIA G. TALANA' $," ANGELE( G. TALANA', oppositors-appellees. E. Debuque for petitioner-appellant. E. L. Segovia for oppositors-appellees. &I-ON, J.: This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Ri al in !pecial Proceedin"s #o. $%$& denyin" the allo'ance of the 'ill of the late Gre"orio Gatchalian, on the "round that the attestin" 'itnesses did not ackno'led"e it before a notary public, as re(uired by la'. )n *arch +,, +-%., Gre"orio Gatchalian, a 'ido'er of .+ years of a"e, died in the municipality of Pasi", Province of Ri al, leavin" no forced heirs. )n /pril $ of the same year, appellant filed a petition 'ith the above named court for the probate of said alle"ed 'ill 012hibit 3C34 'herein he 'as instituted as sole heir. Felipe Gatchalian, /urora G. Camins, /n"eles G. Cosca, Federico G. Tubo", 5ir"inia G. Talanay and /n"eles G. Talanay, appellees herein, opposed the petition on the "round, amon" others, that the 'ill 'as procured by fraud6 that the deceased did not intend the instrument si"ned by him to be as his 'ill6 and that the deceased 'as physically and mentally incapable of makin" a 'ill at the time of the alle"ed e2ecution of said 'ill. /fter due trial, the court rendered the appealed decision findin" the document 12hibit 3C3 to be the authentic last 'ill of the deceased but disallo'in" it for failure to comply 'ith the mandatory re(uirement of /rticle 78% of the #e' Civil Code 9 that the 'ill must be ackno'led"ed before a notary public by the testator and the 'itnesses. /n e2amination of the document 012hibit 3C34 sho's that the same 'as ackno'led"ed before a notary public by the testator but not by the instrumental 'itnesses. /rticle 78% of the #e' Civil Code reads as follo's: 1very 'ill must be ackno'led"ed before a notary public by the testator and the 'itnesses. The notary public shall not be re(uired to retain a copy of the 'ill, or file another 'ith the office of the Clerk of Court. ;e have held heretofore that compliance 'ith the re(uirement contained in the above le"al provision to the effect that a 'ill must be ackno'led"ed before a notary public by the testator and also by the 'itnesses is indispensable for its validity 0In re: Testate 1state of /lberto, G. R. #o. <-++-=7, /pril $-, +-,-4. /s the document under consideration does not comply 'ith this re(uirement, it is obvious that the same may not be probated. ;>1R1F)R1, the decision appealed from is affirmed, 'ith costs.

G.R. No. L-32213 November 26, 1973 AGAPITA N. !R)-, petitioner, vs. HON. .)&GE G)ILLERMO P. +ILLA(OR, Pre%/"/,0 .1"0e o2 *r$,#3 I, !o1r4 o2 F/r%4 I,%4$,#e o2 !eb1, $," MAN)EL *. L)GA', respondents. Paul G. Gorrez for petitioner.Mario D. Ortiz for respondent Manuel B. Lugay. E(G)ERRA, J.: Petition to revie' on ertiorari the ?ud"ment of the Court First Instance of Cebu allo'in" the probate of the last 'ill a testament of the late 5alente @. Cru . Petitioner-appellant /"apita #. Cru , the survivin" spouse of the said decease opposed the allo'ance of the 'ill 012hibit 3134, alle"in" the 'ill 'as e2ecuted throu"h fraud, deceit, misrepresentation and undue influence6 that the said instrument 'as e2ecute 'ithout the testator havin" been fully informed of the content thereof, particularly as to 'hat properties he 'as disposin" and that the supposed last 'ill and testament 'as not e2ecuted in accordance 'ith la'. #ot'ithstandin" her ob?ection, the Court allo'ed the probate of the said last 'ill and testament >ence this appeal by certiorari 'hich 'as "iven due course.

The only (uestion presented for determination, on 'hich the decision of the case hin"es, is 'hether the supposed last 'ill and testament of 5alente @. Cru 012hibit 3134 'as e2ecuted in accordance 'ith la', particularly /rticles 78, and 78% of the ne' Civil Code, the first re(uirin" at least three credible 'itnesses to attest and subscribe to the 'ill, and the second re(uirin" the testator and the 'itnesses to ackno'led"e the 'ill before a notary public. )f the three instrumental 'itnesses thereto, namely Aeo"racias T. Bamaloas Br., Ar. Francisco PaCares and /tty. /n"el >. Teves, Br., one of them, the last named, is at the same time the #otary Public before 'hom the 'ill 'as supposed to have been ackno'led"ed. Reduced to simpler terms, the (uestion 'as attested and subscribed by at least three credible 'itnesses in the presence of the testator and of each other, considerin" that the three attestin" 'itnesses must appear before the notary public to ackno'led"e the same. /s the third 'itness is the notary public himself, petitioner ar"ues that the result is that only t'o 'itnesses appeared before the notary public to ackno'led"e the 'ill. )n the other hand, private respondent-appellee, *anuel D. <u"ay, 'ho is the supposed e2ecutor of the 'ill, follo'in" the reasonin" of the trial court, maintains that there is substantial compliance 'ith the le"al re(uirement of havin" at least three attestin" 'itnesses even if the notary public acted as one of them, bolsterin" up his stand 'ith ,. /merican Burisprudence, p. $$. 'hich, insofar as pertinent, reads as follo's: It is said that there are, practical reasons for upholdin" a 'ill as a"ainst the purely technical reason that one of the 'itnesses re(uired by la' si"ned as certifyin" to an ackno'led"ment of the testatorEs si"nature under oath rather than as attestin" the e2ecution of the instrument. /fter 'ei"hin" the merits of the conflictin" claims of the parties, ;e are inclined to sustain that of the appellant that the last 'ill and testament in (uestion 'as not e2ecuted in accordance 'ith la'. The notary public before 'hom the 'ill 'as ackno'led"ed cannot be considered as the third instrumental 'itness since he cannot ackno'led"e before himself his havin" si"ned the 'ill. To ackno'led"e before means to avo' 0Bavellana v. <edesma, -. Phil. $,7, $%$6 Castro v. Castro, +88 Phil. $&-, $=.46 to o'n as "enuine, to assent, to admit6 and 3before3 means in front or precedin" in space or ahead of. 0The #e' ;ebster 1ncyclopedic Aictionary of the 1n"lish <an"ua"e, p. .$6 Funk F ;a"nalls #e' !tandard Aictionary of the 1n"lish <an"ua"e, p. $,$6 ;ebsterEs #e' International Aictionary $d. p. $=,.4 Conse(uently, if the third 'itness 'ere the notary public himself, he 'ould have to avo' assent, or admit his havin" si"ned the 'ill in front of himself. This cannot be done because he cannot split his personality into t'o so that one 'ill appear before the other to ackno'led"e his participation in the makin" of the 'ill. To permit such a situation to obtain 'ould be sanctionin" a sheer absurdity. Furthermore, the function of a notary public is, amon" others, to "uard a"ainst any ille"al or immoral arran"ement Dalinon v. Ae <eon, ,8 8. G. ,7&.4 That function 'ould defeated if the notary public 'ere one of the attestin" instrumental 'itnesses. For them he 'ould be interested sustainin" the validity of the 'ill as it directly involves him and the validity of his o'n act. It 'ould place him in inconsistent position and the very purpose of ackno'led"ment, 'hich is to minimi e fraud 0Report of Code Commission p. +8%-+8.4, 'ould be th'arted. /dmittedly, there are /merican precedents holdin" that notary public may, in addition, act as a 'itness to the e2ecutive of the document he has notari ed. 0*ahilum v. Court /ppeals, %= 8. G. =8+.6 +. !CR/ =7$6 !a'yer v. Co2, =& Ill. +&84. There are others holdin" that his si"nin" merely as notary in a 'ill nonetheless makes him a 'itness thereon 0Fer"uson v. Fer"uson, =. !. 1. $d. &=%6 In Re Aou"las ;ill, #. G. !. $d. %=+6 Ra"sdal v. >ill, $%- !. ;. $d. -++, Tyson Htterback, +$$ !o. =-%6 In Re DaybeeEs 1state +%8 #. -886 ;. *erill v. Doal, +&$ /. .$+6 See also Tren'ith v. !mall'ood, +, !o. +8&84. Dut these authorities do not serve the purpose of the la' in this ?urisdiction or are not decisive of the issue herein because the notaries public and 'itnesses referred to aforecited cases merely acted as instrumental, subscribin" attestin" 'itnesses, and not as a !no"ledging 'itnesses. >e the notary public acted not only as attestin" 'itness but also ackno'led"in" 'itness, a situation not envisa"ed by /rticle 78, of the Civil Code 'hich reads: /RT. 78%. 1very 'ill must be a !no"ledged before a notary publi by t#e testator and t#e "itnesses . The notary public shall not be re(uired to retain a copy of the 'ill or file another 'ith the office of the Clerk of Court. I1mphasis suppliedJ To allo' the notary public to act as third 'itness, or one the attestin" and ackno'led"in" 'itnesses, 'ould have the effect of havin" only t'o attestin" 'itnesses to the 'ill 'hich 'ould be in contravention of the provisions of /rticle 78 be re(uirin" at least three credible 'itnesses to act as such and of /rticle 78% 'hich re(uires that the testator and the re(uired number of 'itnesses must appear before the notary public to ackno'led"e the 'ill. The result 'ould be, as has been said, that only t'o 'itnesses appeared before the notary public for or that purpose. In the circumstances, the la' 'ould not be duly in observed. F)R /<< T>1 F)R1G)I#G, the ?ud"ment appealed from is hereby reversed and the probate of the last 'ill and testament of 5alente @. Cru 012hibit 3134 is declared not valid and hereby set aside. Cost a"ainst the appellee.