1

[G.R. No. 2586. January 19, 1906. ]

TOMAS GUISON, Petitioner-Appellant, v. MARIA
CONCEPCION, Respondent.

Teodoro Gonzalez, for Appellant.

Gabriel & Borbon, for Appellee.

SYLLABUS
1. WILLS; INABILITY TO SIGN; SIGNATURE BY ANOTHER. The testatrix
was not able to sign her name to the will, and she requested another person to
sign it for her. Instead of writing her name he wrote his own upon the will. Held,
That the will was not duly executed. (Following Ex No. 2002, August 18, 1905.)


D E C I S I O N


WILLARD, J . :


Jacoba Concepcion Salcedo made her will in Manila, on January 3, 1904. The
last part of the will is as follows:jgc:chanrobles.com.ph

"Asi lo otorgo ante los testigos Seores Ambrosio Reyes, Mariano de Leon y
Felix Polintan, de Manila, Islas Filipinas, y por no yo poder firmar, firma a mi
ruego el mismo Feliciano Maglaqui, en mi presencia y de los mencionados
testigos, quienes tambien suscriben, cada uno de ellos en presencia de los
otros y la mia.

"(Firmado) FELICIANO MAGLAQUI.

"(Firmado) AMBROSIO REYES.

"(Firmado) MARIANO DE LEON.

"(Firmado) FELIX POLINTAN.

"Nosotros Ambrosio Reyes, Mariano de Leon y Felix Polintan, atestiguamos que
Filiciano Maglaqui, a ruego de la Sra. Jacoba Concepcion Salcedo y en
presencia de la misma y la nuestra, firmo el testamento que antecede; y que
cada uno de nosotros lo firmo en presencia de los otros y de dicha testadora.

"Manila, tres de Enero de mil novecientos cuatro.

"(Firmado) AMBROSIO REYES.

"(Firmado) MARIANO DE LEON.

"(Firmado) FELIX POLINTAN."cralaw virtua1aw library

It will be seen that the witness Feliciano Maglaqui, instead of writing the name of
the testatrix on the will, wrote his own. Probate of the will was refused in the
court below on the ground that the name of the testatrix was not signed thereto,
and the petitioner has appealed. The question presented has been decided
adversely to the appellant in the following cases: Ex parte Pedro Arcenas Et.
Al., 1 No. 1708, August 24, 1905 (4 Off. Gaz., 568); Ex parte Nemesio Delfin
Santiago, 2 No. 2002, August 18, 1905 (4 Off. Gaz., 507.)

The judgment of the court below is affirmed, with the costs of this instance
against the appellant, and after the expiration of twenty days judgment should
be entered in accordance herewith and the case remanded to the court below
for execution. So ordered.

Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.


G.R. No. 9150, Leao v. Leao, 30 Phil. 612
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
March 31, 1915
G.R. No. 9150
MARIANO LEAO, petitioner-appellant,
vs.
ARCADIO LEAO, objector-appellee.
Vicente Llanes for appellant.
Severo Hernando for appellee.
CARSON, J .:
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The evidence of record satisfactorily discloses that Cristina Valdes, deceased,
placed her costs against her name, attached by some other person to the
instrument offered for probate which purports to be her last will and testament,
in the presence of three witnesses whose names are attached to the attesting
clause, and that they attested and subscribed the instrument in her presence
and in the presence of each other.
We are of the opinion that the placing of the cross opposite her name at the
construction of the instrument was a sufficient compliance with the requirements
of section 618 of the Code of Civil Procedure, which prescribes that except
where wills are signed by some other person than the testator in the manner
and from herein indicated, a valid will must be signed by the testator. The right
of a testator to sign his will by mark, executed animo testandi has been
uniformly sustained by the courts of last resort of the United States in construing
statutory provisions prescribing the mode of execution of wills in language
identical with, or substantially similar to that found in section 618 of our code,
which was taken from section 2349 of the Code of Vermont. (Page on Wills, par.
173, and the cases there cited in support of the doctrine just announced.)
The trial judge was of contrary opinion, and declined to admit the instrument to
probate as the last will and testament of the decedent. We are of opinion,
however, that the evidence of record satisfactorily establishes the execution of
that instrument as and for her last will and testament in the manner and form
prescribed by law.
The judgment entered in the court below should therefore be reversed, without
costs in this instance, and the record remanded to the court below, where
judgment will be entered admitting the instrument in question to probate in
accordance with the prayer of the petitioner. So ordered.
Arellano, C.J. and Araullo, J., concur.
Moreland, J., concurs in the result.



G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J .:
It appears from the record that on the 23d day of August, 1909, one Perfecto
Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court
of First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap
Caong be admitted to probate, as the last will and testament of Tomasa Elizaga
Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died
in the city of Manila on the 11th day of August, 1909. Accompanying said
petition and attached thereto was the alleged will of the deceased. It appears
that the will was signed by the deceased, as well as Anselmo Zacarias, Severo
Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th
day of September, 1909. Timoteo Paez declared that he was 48 years of age;
that he had known the said Tomasa Elizaga Yap Caong; that she had died on
the 11th day of August, 1909; that before her death she had executed a last will
and testament; that he was present at the time of the execution of the same;
that he had signed the will as a witness; that Anselmo Zacarias and Severo
Tabora had also signed said will as witnesses and that they had signed the will
in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age;
that he knew Tomasa Elizaga Yap Caong during her lifetime; that she died on
the 11th day of August, 1909, in the city of Manila; that before her death she
had executed a last will and testament; that he was present at the time said last
will was executed; that there were also present Timoteo Paez and Severo
Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong
signed the will in the presence of the witnesses; that he had seen her sign the
will with his own eyes; that the witnesses had signed the will in the presence of
the said Tomasa Elizaga Yap Caong and in the presence of each other; that the
said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment,
she was in the possession of her faculties; that there were no threats or
intimidation used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition presented
to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on
the 29th day of September, 1909, ordered that the last will and testament of
Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was
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attached to the record and marked Exhibit A. The court further ordered that one
Yap Tua be appointed as executor of the will, upon the giving of a bond, the
amount of which was to be fixed later.
From the record it appears that no further proceedings were had until the 28th of
February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and presented a
petition, alleging that they were interested in the matters of the said will and
desired to intervene and asked that a guardian ad litem be appointed to
represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad
litem of said parties. Gabriel La O accepted said appointment, took the oath of
office and entered upon the performance of his duties as guardian ad litem of
said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in
court and presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate
by order of the court on the 29th day of September, 1909, was null, for the
following reasons:
(a) Because the same had not been authorized nor signed by the
witnesses as the law prescribes.
(b) Because at the time of the execution of the will, the said Tomasa
Elizaga Yap Caong was not then mentally capacitated to execute the
same, due to her sickness.
(c) Because her signature to the will had been obtained through fraud
and illegal influence upon the part of persons who were to receive a
benefit from the same, and because the said Tomasa Elizaga Yap
Caong had no intention of executing the same.
Second. That before the execution of the said will, which they alleged to be null,
the said Tomasa Elizaga Yap Caong had executed another will, with all the
formalities required by law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even
though they had been negligent in presenting their opposition to the legalization
of the will, said negligence was excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the
order of the 29th day of September, 1909, and to grant to said minors an
opportunity to present new proof relating to the due execution of said will. Said
petition was based upon the provisions of section 113 of the Code of Procedure
in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition
for a new trial, attached to said petition the alleged will of August 6, 1909, of the
said Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora, Clotilde
and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for a
rehearing, the Honorable A. S. Crossfield, judge, granted said motion and
ordered that the rehearing should take place upon the 18th day of March, 1910,
and directed that notice should be given to the petitioners of said rehearing and
to all other persons interested in the will. At the rehearing a number of witnesses
were examined.
It will be remembered that one of the grounds upon which the new trial was
requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed
the will (Exhibit A) of the 11th of August, 1909; that in support of that allegation,
the protestants, during the rehearing, presented a witness called Tomas Puzon.
Puzon testified that he was a professor and an expert in handwriting, and upon
being shown the will (of August 11, 1909) Exhibit A, testified that the name and
surname on Exhibit A, in his judgment were written by two different hands,
though the given name is the same as that upon Exhibit 1 (the will of August 6,
1909), because he found in the name "Tomasa" on Exhibit A a similarity in the
tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A
with the surname on Exhibit 1 he found that the character of the writing was
thoroughly distinguished and different by the tracing and by the direction of the
letters in the said two exhibits; that from his experience and observation he
believed that the name "Tomasa" and "Yap Caong," appearing in the signature
on Exhibit A were written by different person.
Puzon, being cross-examined with reference to his capacity as an expert in
handwriting, testified that while he was a student in the Ateneo de Manila, he
had studied penmanship; that he could not tell exactly when that was, except
that he had concluded his course in the year 1882; that since that time he had
been a telegraph operator for seventeen years and that he had acted as an
expert in hand- writing in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he
had drawn the will of the 6th of August, 1909, at the request of Tomasa Elizaga
Yap Caong; that it was drawn in accordance with her request and under her
directions; that she had signed it; that the same had been signed by three
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witnesses in her presence and in the presence of each other; that the will was
written in her house; that she was sick and was lying in her bed, but that she sat
up to sign the will; that she signed the will with great difficulty; that she was
signed in her right mind.
The said Severo Tabora was also called as a witness again during the
rehearing. He testified that he knew Tomasa Elizaga Yap Caong during her
lifetime; that she was dead; that his signature as a witness to Exhibit A (the will
of August 11, 1909) was placed there by him; that the deceased, Tomasa
Elizaga Yap Caong, became familiar with the contents of the will because she
signed it before he (the witness) did; that he did not know whether anybody
there told her to sign the will or not; that he signed two bills; that he did not know
La O; that he did not believe that Tomasa had signed the will (Exhibit A) before
he arrived at the house; that he was not sure that he had seen Tomasa Elizaga
Yap Caong sign Exhibit A because there were many people and there was a
screen at the door and he could not see; that he was called a a witness to sign
the second will and was told by the people there that it was the same as the
first; that the will (Exhibit A) was on a table, far from the patient, in the house but
outside the room where the patient was; that the will was signed by Paez and
himself; that Anselmo Zacarias was there; that he was not sure whether
Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa
Elizaga Yap Caong could see the table on which the will was written at the time
it was signed or not; that there were many people in the house; that he
remembered the names of Pedro and Lorenzo; that he could not remember the
names of any others; that the will remained on the table after he signed it; that
after he signed the will he went to the room where Tomasa was lying; that the
will was left on the table outside; that Tomasa was very ill; that he heard the
people asking Tomasa to sign the will after he was (the witness) had signed it;
that he saw Paez sign the will, that he could not remember whether Anselmo
Zacarias had signed the will, because immediately after he and Paez signed it,
he left because he was hungry; that the place where the table was located was
in the same house, on the floor, about two steps down from the floor on which
Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting the
allegation that Tomasa Elizaga Yap Caong was mentally incapacitated to make
the will dated August 11, 1909 (Exhibit A). Papa declared that he was a
physician; that he knew Tomasa Elizaga Yap Caong; that he had treated her in
the month of August; that he visited her first on the 8th day of August; that he
visited her again on the 9th and 10th days of August; that on the first visit he
found the sick woman completely weak very weak from her sickness, in the
third stage of tuberculosis; that she was lying in bed; that on the first visit he
found her with but little sense, the second day also, and on the third day she
had lost all her intelligence; that she died on the 11th of August; tat he was
requested to issue the death certificate; that when he asked her (Tomasa)
whether she was feeling any pain or anything of that kind, she did not answer at
all; that she was in a condition of stupor, induced, as he believed, by the stage
of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was also called
as a witnesses during the rehearing. He testified that he had known Tomasa
Elizaga Yap Caong since he was a child; that Tomasa was dead; that he had
written the will exhibit A; that it was all in his writing except the last part, which
was written by Carlos Sobaco; that he had written the will Exhibit A at the
request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was
the one who had instructed him as to the terms of the will ; that the deceased
had not spoken to him concerning the terms of the will; that the will was written
in the dining room of the residence of the deceased; that Tomasa was in
another room different from that in which the will was written; that the will was
not written in the presence of Tomasa; that he signed the will as a witness in the
room where Tomasa was lying; that the other witnesses signed the will in the
same room that when he went into the room where the sick woman was
(Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when
Lorenzo came to the bed he showed the will to his sister (Tomasa) and
requested her to sign it; that she was lying stretched out on the bed and two
women, who were taking care of her, helped her to sit up, supporting her by
lacing their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the best inside the room; when he came
back again to the sick bed the will was signed and was again in the hands of
Lorenzo; that he did not see Tomasa sign the will because he withdrew from the
room; that he did not know whether Tomasa had been informed of the contents
of the will or not; he supposed she must have read it because Lorenzo turned
the will over to her; that when Lorenzo asked her to sign the will, he did not
know what she said he could not hear her voice; that he did not know
whether the sick woman was him sign the will or not; that he believed that
Tomasa died the next day after the will had been signed; that the other two
witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room
with the sick woman; that he saw them sign the will and that they saw him sign
it; that he was not sure whether the testatrix could have seen them at the time
they signed the will or not; that there was a screen before the bed; that he did
not think that Lorenzo had been giving instructions as to the contents of the will;
that about ten or fifteen minutes elapsed from the time Lorenzo handed the will
to Tomasa before she started to sign it; that the pen with which she signed the
will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa
Elizaga Yap Caong and that she was dead; that she had made two wills; that
the first one was written by La O and the second by Zacarias; that he was
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present at the time Zacarias wrote the second one; that he was present when
the second will was taken to Tomasa for signature; that Lorenzo had told
Tomasa that the second will was exactly like the first; that Tomasa said she
could not sign it.
On cross examination he testified that there was a lot of visitors there; that
Zacarias was not there; that Paez and Tabora were there; that he had told
Tomasa that the second will was exactly like the first.
During the rehearing Cornelia Serrano and Pedro Francisco were also
examined as witnesses. There is nothing in their testimony, however, which in
our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19
years of age; that she knew Tomasa Elizaga Yap Caong during her lifetime; that
she lived in the house of Tomasa during the last week of her illness; that
Tomasa had made two wills; that she was present when the second one was
executed; that a lawyer had drawn the will in the dining room and after it had
been drawn and everything finished , it was taken to where Doa Tomasa was,
for her signature; that it was taken to her by Anselmo Zacarias; that she was
present at the time Tomasa signed the will that there were many other people
present also; that she did not see Timoteo Paez there; that she saw Severo
Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde
Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to
Tomasa that the second will was the same sa the first; that Tomasa asked her
to help her to sit up and to put a pillow to her back when Zacarias gave her
some paper or document and asked her to sign it; that she saw Tomasa take
hold of the pen and try to sign it but she did not see the place she signed the
document, for the reason that she left the room; that she saw Tomasa sign the
document but did not see on what place on the document she signed; and that a
notary public came the next morning; that Tomasa was able to move about in
the bed; that she had seen Tomasa in the act of starting to write her signature
when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he
knew Tomasa Elizaga Yap Caong and knew that she had made a will; that he
saw the will at the time it was written; that he saw Tomasa sign it on her head;
that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo had
handed the will to Tomasa to sign; that he saw the witnesses sign the will on a
table near the bed; that the table was outside the curtain or screen and near the
entrance to the room where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew
Anselmo Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap
Caong; that Tomasa had given him instructions; that Tomasa had said that she
sign the will; that the will was on a table near the bed of Tomasa; that Tomasa,
from where she was lying in the bed, could seethe table where the witnesses
had signed the will.
During the rehearing certain other witnesses were also examined; in our
opinion, however, it is necessary to quote from them for the reason that their
testimony in no way affects the preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an
extended opinion, reached the conclusion that the last will and testament of
Tomasa Elizaga Yap Caong, which was attached to the record and marked
Exhibit A was the last will and testament of the said Tomasa Elizaga Yap Caong
and admitted it to probate and ordered that the administrator therefore
appointed should continue as such administrator. From that order the
protestants appealed to this court, and made the following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by
the deceased Tomasa Yap Caong, without the intervention of any
external influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge
and knew what she was doing at the time of signing the will.
III. The court erred in declaring that the signature of the deceased
Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which
appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in
accordance with the law.
With reference to the first assignment of error, to wit, that undue influence was
brought to bear upon Tomasa Elizaga Yap Caong in the execution of her will of
August 11th, 1909 (Exhibit A), the lower court found that no undue influence had
been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it
is true that some of the witnesses testified that the brother of Tomasa, one
Lorenzo, had attempted to unduly influence her mind in the execution of he will,
upon the other hand, there were several witnesses who testified that Lorenzo
did not attempt, at the time of the execution of the will, to influence her mind in
any way. The lower court having had an opportunity to see, to hear, and to note
the witnesses during their examination reached the conclusion that a
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preponderance of the evidence showed that no undue influence had been used.
we find no good reason in the record for reversing his conclusions upon that
question.
With reference to the second assignment of error to wit, that Tomasa Elizaga
Yap Caong was not of sound mind and memory at the time of the execution of
the will, we find the same conflict in the declarations of the witnesses which we
found with reference to the undue influence. While the testimony of Dr. Papa is
very strong relating to the mental condition of Tomasa Elizaga Yap Caong, yet,
nevertheless, his testimony related to a time perhaps twenty-four hours before
the execution of the will in question (Exhibit A). Several witnesses testified that
at the time the will was presented to her for her signature, she was of sound
mind and memory and asked for a pen and ink and kept the will in her
possession for ten or fifteen minutes and finally signed it. The lower court found
that there was a preponderance of evidence sustaining the conclusion that
Tomasa Elizaga Yap Caong was of sound mind and memory and in the
possession of her faculties at the time she signed this will. In view of the conflict
in the testimony of the witnesses and the finding of the lower court, we do not
feel justified in reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower court
committed an error in declaring that the signature of Tomasa Elizaga Yap
Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which
appears in the second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of
August 6, 1909 (Exhibit 1), was not the question presented to the court. The
question presented was whether or not she had duly executed the will of August
11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong
did execute the will of August 6, 1909. Several witnesses testified to that fact.
The mere fact, however, that she executed a former will is no proof that she did
not execute a later will. She had a perfect right, by will, to dispose of her
property, in accordance with the provisions of law, up to the very last of moment
her life. She had a perfect right to change, alter, modify or revoke any and all of
her former wills and to make a new one. Neither will the fact that the new will
fails to expressly revoke all former wills, in any way sustain the charge that she
did not make the new will.
Third. In said third assignment of error there is involved in the statement that
"The signature of Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not
identical with that which appears in her second will (Exhibit A)" the inference
that she had not signed the second will and all the argument of the appellants
relating to said third assignment of error is based upon the alleged fact that
Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified
that they saw her write the name "Tomasa." One of the witnesses testified that
she had written her full name. We are of the opinion, and we think the law
sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion
of her name tot he will, with the intention to sign the same, that the will amount
to a signature. It has been held time and time again that one who makes a will
may sign the same by using a mark, the name having been written by others. If
writing a mark simply upon a will is sufficient indication of the intention of the
person to make and execute a will, then certainly the writing of a portion or all of
her name ought to be accepted as a clear indication of her intention to execute
the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504;
Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs.
Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R.
9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R.
A., 353), and cited by the appellees, which was known as "Knox's Appeal." In
this case one Harriett S. Knox died very suddenly on the 17th of October, 1888,
at the residence of her father. After her death a paper was found in her room,
wholly in her handwriting, written with a lead pencil, upon three sides of an
ordinary folded sheet of note paper and bearing the signature simply of
"Harriett." In this paper the deceased attempted to make certain disposition of
her property. The will was presented for probate. The probation was opposed
upon the ground that the same did not contain the signature of the deceased.
That was the only question presented to the court, whether the signature, in the
form above indicated, was a sufficient signature to constitute said paper the last
will and testament of Harriett S. Knox. It was admitted that the entire paper was
in the handwriting of the deceased. In deciding that question, Justice Mitchell
said:
The precise case of a signature by the first name only, does not appear
to have arisen either in England or the United States; but the principle
on which the decisions already referred to were based, especially those
in regard to signing by initials only, are equally applicable to the present
case, and additional force is given to them by the decisions as to what
constitutes a binding signature to a contract. (Palmer vs. Stephens, 1
Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill.,
424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor,
upon the will, is held to "sign" as effectually as if he had written his initials or his
7

full name. It would seem to be sufficient, under the law requiring a signature by
the person making a will, to make his mark, to place his initials or all or any part
of his name thereon. In the present case we think the proof shows, by a large
preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full
name, did at least sign her given name "Tomasa," and that is sufficient to satisfy
the statute.
With reference to the fourth assignment of error, it may be said that the
argument which was preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to show that
Tomasa Elizaga Yap Caong did not sign her name in the presence of the
witnesses and that they did not sign their names in their presence nor in the
presence of each other. Upon that question there is considerable conflict of
proof. An effort was made to show that the will was signed by the witnesses in
one room and by Tomasa in another. A plan of the room or rooms in which the
will was signed was presented as proof and it was shown that there was but one
room; that one part of the room was one or two steps below the floor of the
other; that the table on which the witnesses signed the will was located upon the
lower floor of the room. It was also shown that from the bed in which Tomasa
was lying, it was possible for her to see the table on which the witnesses signed
the will. While the rule is absolute that one who makes a will must sign the same
in the presence of the witnesses and that the witnesses must sign in the
presence of each other, as well as in the presence of the one making the will,
yet, nevertheless, the actual seeing of the signatures made is not necessary. It
is sufficient if the signatures are made where it is possible for each of the
necessary parties, if they desire to see, may see the signatures placed upon the
will.
In cases like the present where there is so much conflict in the proof, it is very
difficult for the courts to reach conclusions that are absolutely free from doubt.
Great weight must be given by appellate courts who do not see or hear the
witnesses, to the conclusions of the trial courts who had that opportunity.
Upon a full consideration of the record, we find that a preponderance of the
proof shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily,
while she was in the right use of all her faculties, the will dated August 11, 1909
(Exhibit A). Therefore the judgment of the lower court admitting said will to
probate is hereby affirmed with costs.
Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.


G.R. No. L-30289 March 26, 1929
SERAPIA DE GALA, petitioner-appellant,
vs.
APOLINARIO GONZALES and SINFOROSO ONA, opponents-appellants.
Sumulong, Lavides & Hilado for petitioner-appellant.
Godofredo Reyes for opponent-appellant Gonzales.
Ramon Diokno for opponent-appellant Ona.
OSTRAND, J .:
On November 23, 1920, Severina Gonzales executed a will in which Serapia de
Gala, a niece of Severina, was designated executrix. The testatrix died in
November, 1926, leaving no heirs by force of law, and on December 2, 1926,
Serapia, through her counsel, presented the will for probate. Apolinario
Gonzales, a nephew of the deceased, filed an opposition to the will on the
ground that it had not been executed in conformity with the provisions of section
618 of the Code of Civil Procedure. On April 2, 1927, Serapia de Gala was
appointed special administratrix of the estate of the deceased. She returned an
inventory of the estate on March 31, 1927, and made several demands upon
Sinforoso Ona, the surviving husband of the deceased, for the delivery to her of
the property inventoried and of which he was in possession.
On September 20, 1928, the Court of First Instance ordered Sinforoso Ona to
deliver to Serapia de Gala all the property left by the deceased. Instead of
delivering the property as ordered, Sinforoso filed a motion asking the
appointment of Serapia de Gala as special administratrix be cancelled and that
he, Sinforoso, be appointed in her stead. The motion was opposed by both
Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, it was
nevertheless granted, Serapia was removed, and Sinforoso was appointed
special administrator in her place, principally on the ground that he had
possession of the property in question and that his appointment would simplify
the proceedings.
In the meantime and after various continuances and delays, the court below in
an order dated January 20, 1928, declared the will valid and admitted it to
probate. All of the parties appealed, Serapia de Gala from the order removing
her from the office of special administratrix, and Apolinario Gonzales and
Sinforoso Ona from the order probating the will.
8

Serapia's appeal requires but little discussion. The burden of the argument of
her counsel is that a special administrator cannot be removed except for one or
more of the causes stated in section 653 of the Code of Civil Procedure. But
that section can only apply to executors and regular administrators, and the
office of a special administrator is quite different from that of regular
administrator. The appointment of a special administrator lies entirely in the
sound discretion of the court; the function of such an administrator is only to
collect and preserve the property of the deceased and to return an inventory
thereof; he cannot be sued by a creditor and cannot pay any debts of the
deceased. The fact that no appeal can be taken from the appointment of a
special administrator indicates that both his appointment and his removal are
purely discretionary, and we cannot find that the court below abused its
discretion in the present case. In removing Serapia de Gala and appointing the
present possessor of the property pending the final determination of the validity
of the will, the court probably prevented useless litigation.
The appellants Sinforoso Ona and Apolinario Gonzales argue that the will in
question was not executed in the form prescribed by section 618 of the Code of
Civil Procedure as amended by Act No. 2645. That section 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 written in the language or dialect known by the testator and signed
by him, 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. 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, on the left margin, and said
pages shall be numbered correlatively in letters placed on the upper
part of each sheet. The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other.
The principal points raised by the appeal are (1) that the person requested to
sign the name of the testatrix signed only the latter's name and not her own; (2)
that the attestation clause does not mention the placing of the thumb-mark of
the testatrix in the will; and (3) that the fact that the will had been signed in the
presence of the witnesses was not stated in the attestation clause but only in
the last paragraph of the body of the will.
The first point can best be answered by quoting the language of this court in the
case of the Estate of Maria Salva, G. R. No. 26881:
1

An examination of the will in question disclosed that it contains five
pages. The name of the old woman, Maria Salva, was written on the left
hand margin of the first four pages and at the end of the will. About in
the center of her name she placed her thumb-mark. About in the center
of her name she placed her thumb-mark. The three witnesses likewise
signed on the left-hand margin and at the end of the will.
On these facts, the theory of the trial judge was that under the
provisions of section 618 of the Code of Civil Procedure, as amended
by Act No. 2645, it was essential to the validity of the will that the
person writing the name of the maker of the will also sign. Under the law
prior to the amendment, it had been held by this court that where a
testator is unable to write and his name is signed by another at his
request, in his presence and in that of the subscribing witnesses
thereto, it is unimportant, so far as the validity of the will is concerned,
whether the person who writes the name of the testator signs his own or
not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his Honor, the
trial judge emphasizes that the amendment introduced into the law the
following sentence: '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, on the left margin . . ..' This
requirement, it is said, was not lived up to in this instance.
There is, however, an entirely different view which can be taken of the
situation. This is that the testatrix placed her thumb-mark on the will in
the proper places. When, therefore, the law says that the will shall be
'signed' by the testator or testatrix, the law is fulfilled not only by the
customary written signature but by the testator or testatrix' thumb-mark.
The construction put upon the word 'signed' by most courts is the
original meaning of a signum or sign, rather than the derivative meaning
of a sign manual or handwriting. A statute requiring a will to be 'signed'
is satisfied if the signature is made by the testator's mark. (28 R. C. L.,
pp. 116-117).
The opinion quoted is exactly in point. The testatrix thumb-mark appears in the
center of her name as written by Serapia de Gala on all of the pages of the will.
The second and third points raised by Sinforoso Ona and Apolinario Gonzales
are sufficiently refuted by quoting the last clause of the body of the will together
9

with the attestation clause, both of which are written in the Tagalog dialect.
These clauses read as follows:
Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyang
naglalaman ng aking huling tagubilin, at sa hindi ko kaalamang lumagda
ng aking pangalan, ipinamanhik ko sa aking pamankin na si Serapia de
Gala na isulat ang aking pangalan at apellido, at sa tapat ay inilagda ko
ang titik ng kanang daliri kong hinlalaki, sa walkas at sa bawat isa sa
anim (6) na dahon ng kasulatang ito, at ito's ginawa niya sa kautusan at
sa harap ko at ng tatlong saksing nagpapatutuo sa huli ngayon ika
dalawang po't tatlo ng Nobiembre ng 1920.
(Sgd.) SEVERINA GONZALES
Pinatutunayan namin na ang kasulatang ito na binubuo ng anim (6) na
dahon na pinirmahan sa harap namin ni Serapia de Gala sa kahilingan
ni Severina Gonzales sa wakas at sa mga gilid ng bawa't isa sa anim
(6) na dahon at isinaysay na ang kasulatang ito ay siyang huling habilin
o testamento ni Severina Gonzales, ay pinirmahan namin, bilang mga
saksi sa wakas at sa gilid ng bawa't dahon sa harap at sa kahilingan ng
tinurang testadora, at ang bawat isa sa amin ay pumirma sa harap ng
lahat at bawat isa sa amin, ngayon ika dalawang po't tatlo ng noviembre
ng taong 1920 ng taong 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
The translation in English of the clauses quoted reads as follows:
In virtue of this will, consisting of six pages, that contains my last wish,
and because of the fact that I cannot sign my name, I request my niece
Serapia de Gala to write my name, and above this I placed my right
thumb-mark at the end of this will and to each of the six pages of this
document, and this was done at my direction and in the presence of
three attesting witnesses, this 23rd of November, 1920.
(Sgd.) SEVERINA GONZALES
We certify that this document, which is composed of six (6) sheets and
was signed in our presence by Serapia de Gala at the request of
Severina Gonzales at the end and on the margins of each of the six (6)
sheets and was declared to contain the last will and testament of
Severina Gonzales, was signed by us as witnesses at the end and on
the margins of each sheet in the presence and at the request of said
testatrix, and each of us signed in the presence of all and each of us,
this 23rd day of November of the year 1920.
(Sgd.) ELEUTERIO NATIVIDAD
JUAN SUMULONG
FRANCISCO NATIVIDAD
As will be seen, it is not mentioned in the attestation clause that the testatrix
signed by thumb-mark, but it does there appear that the signature was affixed in
the presence of the witnesses, and the form of the signature is sufficiently
described and explained in the last clause of the body of the will. It maybe
conceded that the attestation clause is not artistically drawn and that, standing
alone, it does not quite meet the requirements of the statute, but taken in
connection with the last clause of the body of the will, it is fairly clear and
sufficiently carries out the legislative intent; it leaves no possible doubt as to the
authenticity of the document.
The contention of the appellants Sinforoso Ona and Apolinario Gonzales that
the fact that the will had been signed in the presence of the witnesses was not
stated in the attestation clause is without merit; the fact is expressly stated in
that clause.
In our opinion, the will is valid, and the orders appealed from are hereby
affirmed without costs. So ordered.
Johnson, Street, Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.


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,
10

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

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
. . . 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
11

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 prefatory observations which we feel should be made in aid of the
rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree
the disposition of his estate after his death.
13
Under the Civil Code, there are
two kinds of wills which a testator may execute.
14
the first kind is the ordinary or
attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:
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.
12

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 authentication and identification,
and thus indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses.
24

Further, by attesting and subscribing to the will, the witnesses thereby declare
the due execution of the will as embodied in the attestation clause.
25
The
attestation clause, therefore, 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
13

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 identification.
31

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 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 , isthe 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
14

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 Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the
present case since there is no plausible way by which we can read into the
questioned attestation clause 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.
15

Roque,
38
Unson vs. Abella,
39
Pecson vs. Coronel,
40
Fernandez vs. Vergel de
Dios, et al.,
41
and Nayve vs. Mojal, et al.
42
all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases
ofIn 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),
andFernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar([1924], 47 Phil.,
152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses
signed the will and each and every page thereof on the left
margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra,
was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation
clause must 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 shall state the number of sheets or pages
used, upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and
signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that
"The willshall 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
16

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,
49
Rodriguez vs.
Alcala,
50
Enchevarria vs. Sarmiento,
51
and Testate Estate of Toray
52
went the
way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et
al.,
53
Rey vs. Cartagena,
54
De Ticson vs. De Gorostiza,
55
Sebastian vs.
Panganiban,
56
Rodriguez vs. Yap,
57
Grey vs. Fabia,
58
Leynez vs.
Leynez,
59
Martir vs. Martir,
60
Alcala vs. De Villa,
61
Sabado vs.
Fernandez,
62
Mendoza vs. Pilapil,
63
and Lopez vs. Liboro,
64
veered away from
the strict interpretation rule and established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of
the undeniable inclination towards a liberal construction, recommended the
codification of the substantial compliance rule, as it believed this rule to be in
accord with the modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil Code, with
this explanation of the Code Commission:
The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act
No. 2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance
therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405).
These decisions necessarily restrained the freedom of the
testator in disposing of his property.
However, in recent years the Supreme Court changed its
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 directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and
to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate
17

of Mateo Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.


[G.R. No. 9089. January 5, 1915. ]

In re the estate of the deceased SOTERA BARRIENTOS. SAMUEL
PERRY, Petitioner, respondent-appellant, v. VICENTE
ELIO, Petitioner, Respondent-Appellee.

Wolfson & Wolfson and Isaac Adams for Appellant.

No appearance for Appellee.

SYLLABUS
1. WILLS; PROBATE; PREPARATION BY INTERESTED PARTY. "If a party
write or prepare a will under which he takes a benefit, that is a circumstance
which ought generally to excite the suspicion of the court, and calls upon it to be
vigilant and jealous in examining the evidence in support of the instrument, in
favor of which it ought not to pronounce unless the suspicion is removed, and it
is judicially satisfied that the paper propounded does express the true will of the
deceased." (Delafield v. Parish, 25 N. Y., 9, 36, citing Barry v. Bultin, 1 Curt.
Eccl. Rep., 637.)

2. ID.; SIGNATURE. In order that a will executed by one person and signed
by another on account of the testators inability to sign may be deemed valid,
the law requires that it shall have been signed under the express direction or the
express order of the testator. (Sec. 618, Code Civ. Proc.)


D E C I S I O N


ARAULLO, J . :


Upon the decease of Sotera Barrientos, a resident of the municipality of
Mambajao, Province of Misamis, 68 years of age, the wife of Samuel Perry in
her third marriage, in the said municipality on August 31, 1912, two documents
were presented in the Court of First Instance of the said province, each of
which, according to those who respectively presented them, was the last will
and testament of the said deceased.

The first document was filed on September 4, 1912, that is, four days after the
death of the testatrix, by Vicente Elio, son of her first husband, and her brother-
in-law; and the second on December 20 of the same year, 1912, by Samuel
Perry, her surviving husband. Perry opposed probate of the first document, and
Elio, in turn, that of the second. By agreement of both parties the two petitions
were heard jointly, in order that the evidence introduced to support the one
might be used to impeach the other. Likewise the court, on February 1, 1913,
made one single order in both cases, whereby, after giving due weight to the
evidence introduced and setting forth the findings of fact and of law that he
deemed pertinent with respect to each of the said petitions and to the
documents to which they respectively referred, he held that the said two wills
were true and authentic, but that the one executed on September 21, 1910, had
been revoked by the one subsequently executed on August 26, 1912. He
therefore denied the probate of the first, that is, of the one executed in favor of
Samuel Perry, and ordered that the second will, in favor of the other petitioner,
Vicente Elio, be probated as the last will and testament of the said Sotera
Barrientos, disallowing with costs the claim of the respondent Perry.

The latter having appealed from the said order, his counsel alleges in this court
that the trial court erred therein by holding: (1) That the deceased understood
the terms and knew the effects of the document, the legalization of which as a
will had been ordered by the court; (2) that the said document expressed the will
and intention and constituted a free act of the deceased; (3) that the said
document was signed with the name of the deceased in her presence and by
her express order; (4) that such document was legally executed by the
deceased; and, (5), that the will of September 21, 1910, was not entitled to
probate.

In the document presented by Samuel Perry as being the will executed by the
deceased Sotera Barrientos on the said 21st of September, 1910, the original of
which, marked "Exhibit A," is found on page 8 of the record, the said deceased
first names Perry as the devisee of one-third of her estate and afterwards
names him the sole heir of the remainder, that is, of the other two-thirds. The
said document appears to have been signed by the testatrix, Sotera Barrientos,
and by three witnesses, and ratified by the testatrix on the same date,
September 21, 1910, before the notary public Esteban Concepcion, of the
municipality of Mambajao, Province of Misamis.

In the document presented in turn by Vicente Elio, also as the will executed by
18

the same Sotera Barrientos on August 26, 1912, the original of which, marked
"Exhibit A," is found on page 11 of the record, it appears that the testatrix
declared, in clause 3 thereof, that she was the wife of Samuel Perry, an
American, by whom she had no children and who was then, on that date,
absent, he having forsaken her during her serious illness. In clause 5 it appears
that it was her will that all her belongings, present and future, should become
the sole and exclusive property of her son-in-law, Vicente Elio, whom in that
proceeding she declared to be the heir of all her property, and she further
declared that she revoked and annulled all the testamentary provisions that she
had executed prior to that date. The said document concludes as
follows:jgc:chanrobles.com.ph

"I likewise authorize Santos Matayabas to write and draw up the present will, as
I am unable to do so.

"As it is impossible for me to sign the present will with my own hand and in my
own writing, by reason of my advanced age and my debility, I authorize and beg
Santos Matayabas, who is present, to do so at my request.

"At the request of Sotera Barrientos:chanrob1es virtual 1aw library

(Signed) "SANTOS MATAYABAS.

"Signed in the presence of:chanrob1es virtual 1aw library

(Signed) "ISIDORO SABIDO.

"ARCADIO RIVERA.

"FRAN.Co AGUILAR.

"FELICIANO VALDIHUESA.

"We, Isidoro Sabido, Arcadio Rivera, Francisco Aguilar, and Feliciano
Valdihuesa, certify that the foregoing will was signed by Santos Matayabas at
the request of the testatrix in our presence, that she stated that it was her will,
and that it was signed by each of us at the request of the testatrix in her
presence and in ours.

"Signed in Mambajao, August 26, 1912.

(Signed) "ISIDORO SABIDO.

"ARCADIO RIVERA.

"FRAN.CO AGUILAR.

"FELICIANO VALDIHUESA."cralaw virtua1aw library

In the order aforementioned, the lower court, referring to the document
presented as a will by Samuel Perry, stated, after mentioning the testimony
given by the witnesses at the hearing on the respective petition, that it was his
opinion that the authenticity of the said document executed by Sotera Barrientos
on September 21, 1910, had been proven; that in its execution all the formalities
required by section 618 of Act No. 190 had been observed, and that, moreover,
it did not contain any of the defects specified in section 634 of the same Act.
The court did not, however, order the probate of this will, because, as has been
said, he understood that it had been revoked by the subsequent will, that is, by
the one presented by Vicente Elio.

No objection having been made nor exception taken to the above-mentioned
finding of the court with respect to the authenticity and due execution of the first
will, to wit, that of September 21, 1910, there is no reason in the present
decision to occupy ourselves with any matter to which the said will refers; we
shall confine ourselves to an examination of the second will, as this latter is the
subject of the appeal before us.

From the evidence presented by the petitioner Elio in support of the probate of
the said second will, to wit, that dated August 26, 1912, it is shown that at the
trial Vicente Elio himself testified, as did Santos Matayabas, who appears to
have signed the document at the request of the testatrix, and the witnesses
Feliciano Valdihuesa, Arcadio Rivera, and Isidoro Sabido, whose names appear
at the foot of the same document.

From the testimony of all of them, and especially from that of Vicente Elio, it is
disclosed that on the morning of the said 26th day of August, 1912, Elio and
Santos Matayabas, accompanied by the other three men abovenamed and by
Francisco Aguilar, who had been previously invited by the said Elio, repaired to
the house of Sotera Barrientos, who was then seriously ill. The four last-named
men so invited went for the purpose of witnessing the will which, according to
the petitioner Elio, the said woman was to execute. Entering upon further
details, Elio testified that two or three days prior to that date, Sotera Barrientos
had ordered him to draw up a document as her will, as witness called it, and for
that purpose gave him, in a rough penciled draft, all the necessary data, details,
particulars and instructions; that on Sunday morning, the 25th of August, as
witness had already prepared the document, he read it to Sotera Barrientos in a
clear voice and explained it to her point by point, paragraph by paragraph, and
the latter approved the draft and told him to have Santos Matayabas make a
19

clean copy of it, for Matayabas was her clerk and always did her work; that on
the morning of the following day, the 26th, he had Matayabas write out the said
document, copying it from the rough draft approved by Sotera Barrientos; that
while Matayabas was writing. it, witness remained beside him to explain to him
such words, amendments and references of the rough draft as the copyist did
not understand; and, finally, that when the clean copy had been made and the
document was finished, at about 11 oclock that same morning, witness, leaving
Matayabas in his (Elios) house, went to those of his neighbors, Rivera,
Valdihuesa, and Sabido, and asked them to act as witnesses; that he made the
same request to Francisco Aguilar, whom he found in Valdihuesas house; that
all of these four men acceded to his request, whereupon he returned to his own
house to get Matayabas, left the house with the latter, who carried the will, an
inkstand, a pen, and a blotter, and, joining the other men in the street, they all
went up into the house of Sotera Barrientos.

Other testimony given by the petitioner Elio and his witnesses above mentioned
tend to prove that, when all of them and the other witness Aguilar were in the
house of Sotera Barrientos that morning and while she was sick and in bed, but
sound in mind and physically capable of performing the act, and after she had
been informed of the reason of their presence in her house, Santos Matayabas
proceeded to read the document which Elio had brought with him; that upon
being asked if that were her will and testament, she approved the clauses
contained therein; that, as Sotera Barrientos was unable to sign the said
document on account of her debility, though she tried to do so, first with a pencil
and afterwards with a pen, Santos Matayabas signed for her at her request and
in her stead in the presence of all the witnesses; and that these latter also
signed in presence of the testatrix, and each one of them in presence of the
others.

However, these same witnesses explained the manner in which Sotera
Barrientos manifested her approval of the contents of the document read to her
by Santos Matayabas and how she replied to the questions put to her relative to
whether the statements contained in the said document were her last will and
testament, by testifying that all she said was "yes." The reason why she could
not answer in any other way the questions which were then put to her, as well
as what occurred as a result of her asking Matayabas, as it is alleged she did, to
sign for her, are also stated by some of the same witnesses in their testimony,
which at the same time gives a sufficient idea of the condition in which the said
patient was at that time. This testimony, or such part thereof as is pertinent to
the points above referred to, is hereinbelow quoted, in order that the statements
made by the said witnesses may be better understood:chanrob1es virtual 1aw
library

Santos Matayabas:jgc:chanrobles.com.ph

"Q. Who requested you to sign this document, Exhibit A? A. As one could no
longer understand what that deceased was saying, she pointed me out and I
understood the gesture to mean that I was to sign the document that had been
executed and that I should sign in her stead. In view of this, as her sign was not
well understood, Mr. Vicente Elio repeated and approached her, asking whether
she wished Santos Matayabas to sign; she answered yes.

"Q. How did she reply, in Spanish or in Visayan? A. In Visayan, saying: O-o.

"Q. How do you know that Sotera -Barrientos was unable to write her name on
the date when the document Exhibit A was executed? A. Because when the
document was finished and read she was asked whether that document was her
last will and she said yes, that it was her last will. In view of this, and as we saw
that she was unable to sign because she was weak, we took a sheet of paper
and raised her up to see whether she could write her signature. Then we gave
her a pencil and she took hold of the pencil and made as if she would sign and
as she was very weak she was unable to carry out her intention to do so. Again
we handed her a pen with ink and tried to have her sign and she made as if she
would sign, but it was utterly impossible for her.

"Q. n view of that, what was done then? We made her lie down and we asked
her what person she wished to point out as the one who should sign in her
stead.

"Q. Then what did the testatrix say? A. She said these words, but not speak
well, and it was then that she made some gestures and she indicated to me by
certain signs that I interpreted to mean that she wished me to understand that I
should sign.

"Q. What else? A. In view of this, we wished to clear up the matter so Mr.
Vicente Elio asked her whether she desired Santos to sign.

"Q. What did she say then? A. She replied by saying yes.
x x x


"Q. Did you or did you not observe the physical condition of Sotera Barrientos at
the very moment the will was made? A. We being there, I observed, I
looked.

"Q. But did you observe her physical condition? A. Yes sir.

20

"Q. What was the physical condition of Sotera Barrientos at the very moment
the will was made? Can you tell us? A. She was very weak on account of her
sickness and her words could hardly be understood; her words were no longer
very clear.

"Q. What do you mean to say by that that her words could hardly be
understood and that her words were no longer very clear? A. I mean that
when I was there she was pretty weak and her words could not be distinctly
understood; and as it was to be understood and seen by her replies to the
questions she was asked by one of us, I understood that she was in her right
mind.

"Q. How do you know that she was in her right mind? A. By her replies to the
questions that were asked her.

"Q. If what she said could not be well understood, how do you know that she
replied to the questions you people put to her? A. She clearly renounced the
word yes.

"Q. What else did you observe as to the physical condition of Sotera at the
moment of the making of the will Exhibit A of case No. 1943? A. I can not say
much about it, because in my judgment she clearly replied yes; to all the
questions addressed to her she replied yes.
x x x


Q. What questions did one of you put to her? A. The first question that Isidoro
Sabido asked the sick woman when we entered was: We have come here for
the will which you ordered to be made. Our purpose is to ascertain from you
whether that is really and truly your will. Then she replied in this way: Yes, it is.
After that, Isidoro Sabido said: Listen, because we are going to read what the
will says. Immediately after this the will was read to her point by point, clause by
clause; she was asked whether it was an expression of her wishes, and she
replied yes. When the will was read she replied by the same word yes. When
the will was read Isidoro Sabido asked whether she knew the people who were
then and there present, and she replied yes. This done, Feliciano Valdehueza,
who was beside me, for I was standing by one of the bedposts, was pointed out
and she was asked whether she recognized Feliciano Valdehueza, and she
replied yes. She was asked to name him and some time elapsed before she
replied and afterwards she made some movements with her head as if wishing
to say that she did not remember the name of the person concerning whom she
had been questioned."cralaw virtua1aw library

Feliciano Valdehueza:jgc:chanrobles.com.ph

"Q. And why did she not sign with her own hand and in her own writing this
document Exhibit A.? A. If I am not mistaken, she could not sign on account
of her sickness; her hand was shaky.

"Q. Why did you sign this document Exhibit A.? A. Because I served as a
witness.

"Q. Where were you when Santos Matayabas signed this document Exhibit A.?
A. I was present.
x x x


"Q. Why did Santos Matayabas read this document exhibit A? A. So that
Sotera Barrientos might hear whether the words contained in the document
were an expression of her wishes

"Q. During the time this document Exhibit A was being read, was Sotera
Barrientos questioned, or was she not, with respect to the contents of this
document Exhibit A? A. Each time the reading was resumed, she was
questioned; she was continually questioned.

"Q. What was she asked then? A. Whether the contents of the will were an
expression of her wishes.

"Q. What did Sotera Barrientos then reply? A. She answered with this word:
Yes.

"Q. When Sotera Barrientos replied with that word yes, did you see her? A. I
was listening.

"Q. Who spoke to Santos Matayabas in order that he might sign this document
Exhibit A in the name and on behalf of Sotera Barrientos? A. When she could
not sign, they had her select from among those present the person who should
sign in her stead and on her behalf and she indicated Santos Matayabas. Then
Don Vicente repeated, asking whether she pointed out Santos Matayabas, and
she replied with the word: Yes.

"Q. What was then the physical condition of the testatrix Sotera Barrientos, on
the date when the document Exhibit A was prepared? A. A woman tried to
raise her up, but as the woman was unable to do so, Don Vicente Elio assisted
her.
21


"Q. What else? A. She being in that condition, they wished her to try to sign;
they gave her a pencil for the purpose, but she could not sign because her hand
was shaky. Then they gave her a pen but with it she was unable to sign. Then
she was told to select from among the persons present the one who should sign
for and in her stead.

"Q. But what was the physical condition of the deceased, Sotera Barrientos, on
that date? A. It was hardly such and they made her lie down, because she
was quite weak.

"Q. What do you mean by it was hardly such? A. On account of her debility
they made her lie down.
x x x


"Q. Did you hear Doria Sotera Barrientos say any other word than yes while you
were there? A. I heard nothing else; only yes.

"Q. Then when you said that she always replied correctly to the questions, she
continually said yes? A. Yes; that is what I said, yes.

"Q. Then your sole reason for believing that she understood the questions, is
that she always replied yes? A. Yes; every time they questioned her, she
replied yes."cralaw virtua1aw library

Arcadio Rivera:jgc:chanrobles.com.ph

"Q. In what capacity did you sign that will? A. I signed the will because when
the will was read Mrs. Sotera Barrientos approved it.

"Q. Who read it? A. Santos Matayabas.

"Q. How do you know that Sotera Barrientos approved the contents of this will?
A. Because when the document was read to her she was asked whether that
document was an expression of her wishes, and she laboriously replied yes.

"Q. Why do you say that she replied laboriously? What do you mean by that?
A. Because she was sick.
x x x


"Q. Do you know why Santos Matayabas signed this document Exhibit A.? A.
I know.

"Q. Did he sign this document? A. It had been agreed that the document
should be signed.

"Q. Who agreed? A. I, Isodoro Sabido, Feliciano Valdehuesa, and Santos
Matayabas.

"Q. What I ask you is why did Santos Matayabas sign this document Exhibit A.?
A. The reason why he signed the document was because it had been agreed
upon and he was asked to sign by Vicente Elio.
x x x


"Q. Did you or did you not see Sotera Barrientos sign this Exhibit A that is now
before you? A. Only at the request of Sotera Barrientos.

"Q. What do you mean by at the request? A. She did not sign, because she
was sick; and when they were going to have her sign, because she was weak.

"Q. Explain what it is that you mean by those words at the request. A. As
she was no longer able to sign, Santos did so only on request, because she was
sick.

"Q. Do you or do you not mean to say that Santos signed the will? A. He
signed it.

"Q. Why did Santos Matayabas sign this document? A. Santos Matayabas
signed because our master had ordered the five of us to sign it.

"Q. Who is that master? A. Mr. Vicente Elio.

"x x x

"Q. When you went to the house of Sotera Barrientos on the day this document
Exhibit A was prepared, did you go alone or in the company of others? A. I
went with Isidoro Sabido, Feliciano Valdehuesa, and Francisco Aguilar.

"Q. When you all arrived at the house of Sotera Barrientos, what did they do
there? A. They did nothing there when we arrived. The will was already
prepared, and we were the last to arrive. Something remained yet to be done to
this document and when we arrived we witnessed the completion of the
22

document.

"Q. Which is the part of this document Exhibit A that was prepared in the house
of Sotera Barrientos and witnessed by all of you? A. Here it is (pointing to a
paragraph which reads: We, Isidoro Sabido, Arcadio Rivera, certify, etc.) .

"Q. Was the document read before it was signed, or was it not? A. It was
read.

"Q. Who read it? A. Santos Matayabas.

"Q. After Santos Matayabas had read this document Exhibit A, what was done?
A. After it was read, the sick woman was asked whether she was willing to
sign it and afterwards she replied yes, that she was going to sign. She was also
asked by Vicente whether she wished to sign, and she said yes.

"Q. What else? A. For this reason they raised her up and gave her a pencil to
sign with, and as this could not be done they then asked her who it was she
wanted to sign, and she said these words: O--o (yes) and pointed to a man by
her feet.

"Q. Who was that person whom she pointed out? A. Santos Matayabas.

"Q. When what did she do when she had pointed out Santos Matayabas?
Nothing else.

"Q. Did Vicente Elio say anything then or not? A. Nothing else.
x x x


"Q. Did you speak to Mrs. Sotera Barrientos while you were in the house? A.
No, sir.

"Q. Why did you sign the will? A. I signed it because after it was read, master
said All of you sign it.

"Q. By master do you refer to Vicente Elio? A. Yes, sir.

Isidoro Sabido:jgc:chanrobles.com.ph

"Q. Why did Santos sign? A. Santos signed at the request of the testatrix.

"Q. Why did Santos Matayabas sign at the request of the testatrix? Did the
testatrix not know how to sign? A. Yes, she did; but she was no longer able
to.

"Q. Why was she unable to sign? A. Perhaps on account of her sickness she
had not the strength to sign.

"Q. How do you know that the testatrix was unable to sign? A. I know it,
because in the beginning when Mr. Vicente Elio asked: Would you like to sign?
she said: Yes; why not? and then they gave her a paper and a pencil to see
whether she could or not. She could no longer do so, but would have been
pleased to sign.

"Q. What was done, in view of the fact that she was unable to sign the
document?

"x x x

"A. Then Mr. Vicente Elio named at the request of her signature.

"x x x

"Q. What do you mean by your answer that Mr. Vicente Elio named at the
request of her signature? A. Mr. Elio named Santos Matayabas at the
request of the signature of the testatrix.

"Q. He named him for what? A. To sign.

"Q. Who named? A. Mr. Elio.

"Q. Whom did Mr. Vicente Elio name? A. Santos Matayabas.

"Q. Why did Vicente Elio name Santos Matayabas to sign? A. Because the
testatrix was no longer able to sign.

"Q. What did you see or hear there? Say whether you saw or heard anything
there before Vicente Elio named Santos Matayabas. A. Nothing.

"Q. Were no words spoken? A. Mr. Elio named Santos Matayabas to write
the signature of Doa Sotera instead of the signature of Sra. Tiray and she was
willing to have Santos Matayabas sign at her request.

"Q. How do you know that Sotera Barrientos was willing? A. Because Mr. Elio
asked the testatrix whether Santos Matayabas should sign her name.

23

"Q. And what happened after Mr. Elio had asked whether she was willing to
have Santos Matayabas sign? A. She replied yes, she was willing.

"Q. Who replied? A. The testatrix.

"Q. In what manner did she reply? A. She replied yes, by nodding her head.

"Q. What word did she employ? A.Yes.

"Q. Did she say nothing but that word? A. She only said yes.
x x x


"Q. When this document Exhibit A was prepared, what was the physical
condition of the testatrix? A. As I observed after various questions had been
asked her, I saw that she had the, what do you call it .

"Q. What was the condition of the patient? A. She was in good spirits.
x x x


"Q. Tell all you know. A. I do not understand the meaning of the words
physical condition; they are beyond my understanding.

"Q. What was her mental condition? A. She was lying down.

"Q. What else do you know about her physical condition? A. As in the
questions, she replied to various questions, I observed that when she replied, it
was in the affirmative.

"Q. What questions did you ask Sotera Barrientos then? A. After reading the
will, I asked whether she approved all the words it contained. She replied yes.

"Q. What else did you ask her? A. Whether it was of her own free will. She
replied yes. I asked her whether she knew Feliciano Valdehueza. She replied
yes. Later, when I asked her what was the name of Feliciano Valdehueza, she
did not know his name.

"Q. Did she say that she did not know his name? A. But she did not reply at
once. She was no longer able to speak and merely made a movement with her
head.

"Q. What other conversation did you then have with the testatrix.? A. No
more after that question.

"x x x

(Referring to the will in question, Exhibit A of Case No.
1943):jgc:chanrobles.com.ph

"Q. Why did you sign this document? A. Because I understood that the
testatrix executed that will.

"Q. Who requested you to sign this document? A. Mr. Vicente Elio.

"Q. And the only reason you have for believing that the testatrix had executed a
will, was because she said yes in answer to a question? A. Yes.

"Q. Who asked those questions? A. I did." Vicente Elio also testified as
follows:jgc:chanrobles.com.ph

"Q. When you folks arrived at house of the testatrix, who were there? A. The
servants.

"Q. How did you find the testatrix? A. Lying down, as nearly always.

"Q. What was the physical condition of the testatrix on the day the will was
signed? A. With respect to her health, she was pretty weak and for several
days the doctors had been attending her.

"Q. Was the testatrix attended by any duly licensed physician during her
sickness? A. Yes, sir; Dr. Felipe Arenas.

"x x x

"Q. How long had Doctor Arenas been attending the testatrix before her death?
A. If my memory serves me correctly, from the beginning of July, 1912.

"Q. On that date, August 26, 1912, was Doctor Arenas attending her, or was he
no longer doing so? A. Yes, sir; until the day of her death.

"Q. At the time that will was signed, August 26, 1912, was any conversation
carried on with the testatrix? A. Yes, sir.

"Q. With whom did the testatrix speak at the time the will was signed, on August
26, 1912? A. Before the reading of the will, first with me and then with Isidoro
24

Sabido.

"Q. What did you say to the testatrix? A. I said to her: Tiray (that was her pet
name), these gentlemen are acting as witnesses to the reading and signing of
the will.

"Q. What was her reply? A.Yes.

"Q. Did you say anything else to the testatrix? A. I spoke to her about the
signature, because she was my stepmother.

"Q. What did you say with respect to the signature of the will? A. She replied
to the questions of Isidoro Sabido as to whether that document expressed her
free and spontaneous wishes. I told her that she had to sign, and she replied
yes.

"Q. Did she then sign the will? A. She attempted to sign, but could not.

"Q. Why could she not? A. Because her hand was so weak.

"Q. In view of the fact that she was unable to sign, what did she do? A. As
she was unable, in spite of her insistence, I told her to choose one of the five
men to sign at her request.

"Q. What did she do? A. She replied in a low voice, only heard by me,
speaking in my ear the name Santos and pointed him out, for he was at her
side.

"Q. What was done when she spoke that name Santos and pointed him out?
A In order that the rest might know it, I repeated in a loud voice: Santos
Matayabas. The testatrix replied: Yes.

"Q. After she had made that reply to the question, what did Santos Matayabas
do? A. Immediately thereafter Santos Matayabas signed.

"Q. How do you know? Were you there at that moment? A. Yes; in the first
place, to see whether the servants were giving her food and medicine, for it was
I who took care of her, notwithstanding my wifes sickness. In the second place,
to see whether the testatrix might wish to make any amendments, corrections,
or amplifications, for Santos Matayabas was not able to make them
himself."cralaw virtua1aw library

As seen by the preceding testimony, on the occasion to which the witnesses
refer, that is, at the time they and Elio presented themselves at the house of
Sotera Barrientos with the document prepared by Elio in order that it might be
executed as her will, the weakness of the testatrix was so great that not only
was she unable to sign the said instrument, all the means employed for that
purpose having been in vain, but she had also lost the power of speech, for,
according to Matayabas, what she said could no longer be understood, nor were
the signs that she made well understood. According to Sabido, she was no
longer able to talk; she merely made movements with her head, although, as all
these witnesses testified, she gave it to be understood that the document that
had been read to her was her will and expressed her wishes, because she
replied to the questions which were put to her to ascertain whether such it was,
by saying yes; but, according to the witness Rivera, this reply was made with
great effort. One of the witnesses, Matayabas, was of the opinion that the
patient was in a sufficiently good physical condition to perform the act and that
she had the use of her faculties, because she replied clearly by the word "Yes,"
and this word was her answer to all the questions that were put to her. The
witness Valdihueza testified that his reason for believing that Sotera Barrientos
understood the questions that were addressed to her, was that she always
replied yes.

This same testimony also shows that Santos Matayabas signed the said
document at the request of the testatrix because she was unable to do so
herself; that she designated Matayabas for that purpose by means of signs and
replied by the word yes to the question asked her by Elio in regard to the signing
of the document. One of the witnesses, however, Arcadio Rivera, stated in his
testimony that Santos Matayabas signed it because he had been designated by
the testatrix, without Vicente Elios then saying anything; but the same witness,
upon being asked why Santos Matayabas signed the said document, replied:
"Santos Matayabas signed because our master had directed us five to sign,"
and added that master was Vicente Elio.

The signature of Santos Matayabas does, in fact, appear immediately after the
words, "At the request of Sotera Barrientos," found in the said document Exhibit
A, as may be seen by the part thereof quoted in this decision, and it is also true
that signature was written by Matayabas.

However, aside from what has already been said on the subject of the
statements made by the witnesses regarding the designation of Matayabas
which, they asserted, was made by Sotera Barrientos to sign the said document
for her, account must be taken of the fact that the witness Arcadio Rivera, in his
testimony above quoted, after saying that together with the other three
witnesses he went to the house of Sotera Barrientos that morning and upon
being asked what was done there when they arrived, said that something
remained yet to be done to the said document and they witnessed its
completion, and when afterwards asked which was the part of the document
25

prepared in the house of Sotera Barrientos and witnessed by them, replied:
"Here it is," pointing out the paragraph which begins with the words: "We,
Isidoro Sabido, Arcadio Rivera,. . . certify," etc., that is, the paragraph that
immediately follows the signatures of Santos Matayabas himself and the four
witnesses, which are preceded by the following
paragraphs:jgc:chanrobles.com.ph

"I likewise authorize Santos Matayabas to write and draw up the present will, as
I am unable to do so.

"As it is impossible for me to sign the present will with my own hand and in my
own writing, by reason of my advanced age and my debility, I authorize and beg
Santos Matayabas, who is present, to do so at my request."cralaw virtua1aw
library

So then, it appears from this testimony of Arcadio Rivera that when Vicente Elio,
in company with Santos Matayabas and the witnesses, presented himself in the
house of Sotera Barrientos in order that she might execute her will, bringing with
him as such the document Exhibit A, there had already been written in the said
document the second of the two paragraphs above quoted; and that in this
second paragraph the statements appears that, as it was impossible for the lady
to sign the will in question with her own hand and in her own writing, on account
of her advanced age and her debility, she authorized and begged Santos
Matayabas, who was present, to do so at her request, or, what amounts to the
same thing, Riveras testimony shows that particular paragraph, as well as all
the first part of the said document,-had been written by Santos Matayabas
himself in Vicente Elios house, that morning, a few moments before their arrival
at the house of Sotera Barrientos.

This clearly indicates that when Vicente Elio prepared the aforementioned will
by having it copied in his house and under his own direction by Santos
Matayabas, he was convinced that Sotera Barrientos could not sign the said
document on account of her advanced age and her debility, and that he already
knew the womans condition, she being almost speechless, incapable of making
herself understood even by means of signs and only able to articulate the word
"Yes;" for that document was written that same morning, a few moments before
he appeared with the witnesses at the house of the sick woman and there tried
to have her execute her will. This fact also conclusively proves that the
designation of Santos Matayabas to sign the said will at the request of the
testatrix had been made by Elio before he went with the witnesses to Sotera
Barrientos house, and that the statement of himself and the witnesses as to
what occurred as regards their efforts to obtain from her the designation of a
person who should sign at her request on that occasion, even granting it to be
true, was no more than a mere form to set forth what Elio himself had in view,
so as to give to the said document the character of a will, for he well knew that,
by reason of the condition of the patient and her inability to manifest her wishes,
she could not make the designation which was necessary for the purpose
intended by him. And if that act of thoughtful preparation on the part of Vicente
Elio shows, if not his conviction, as above stated, at least his fear that Sotera
Barrientos might not be in a condition to be able to designate the person who
should sign the instrument for her, either because of the advanced stage of her
sickness or because of her inability perhaps to express her wishes in regard to
the matter, it is also a proof that the testatrix was unable to express her will in
such manner as to make known unmistakably what she wished and meant by
replying with the monosyllable "Yes," to the questions which the aforenamed
witnesses testified were asked her with respect to the said document at the time
it was being read.

An attempt was made, however, to prove by means of the witnesses
Valdehueza and Rivera that Sotera Barrientos was in sound mind and had a
perfect knowledge of the things done on that occasion. Valdehueza testified that
they and their companions were served with beer; that Sotera Barrientos
inquired how many bottles had already been opened, and that, as Vicente Elio
replied to her that there were four, she said: "Justo na; basta." (Thatll do now;
thats enough.) As the lady was unable to articulate any other word than the
monosyllable "Yes," or to make herself understood by signs; as her voice was
not perceptible to those around her, as shown by the fact related by Elio of his
having to place his ear very close to the patient in order to hear, as he said, the
name "Santos" uttered by her when she designated Santos Matayabas to sign
the document for her; and as she did not say a single word when it was
necessary for her to speak, in order to show at least that she understood the
questions asked her, it is truly remarkable that she should have been able to
inquire how many bottles of beer had been opened and to say: "Justo na;
basta," that is, that there were already enough, when they told her that there
were four. The extraordinary nature of this occurrence, entirely opposed to the
actual facts as related by the same witnesses and by Vicente Elio, shows that
the statements made by Valdehuesa and Rivera are not true. On the contrary,
the absurdity and unlikelihood of those statements, in relation to the facts
aforementioned, prove that these witnesses were interested in supporting the
claim of the petitioner who had presented them, and that they were disposed to
serve and accommodate him.

In conclusion, the only proof that the document, the probate of which as the will
of Sotera Barrientos was requested by Vicente Elio, is an expression of the real
wishes of the testatrix, consists, according to those same witnesses, in that she
replied to Isidoro Sabido with the monosyllable "yes" when Santos Matayabas
read the said document and she was asked whether it expressed her wishes.
However, it is very doubtful whether the sick woman, in the condition in which
26

she was, understood what Matayabas read to her, nor can the fact of her having
said "yes" be accepted as an absolute proof that she understood what was
read, for, as the same witnesses testified, she made this same reply to all the
questions that were then put to her, an answer which could be interpreted as
being either approval and agreement in regard to those questions or
indifference to all that was happening about her. Aside from this, one of the
witnesses, Valdehueza, testified that the patient Ws continually plied with
questions, giving the impression that the interrogatories were made during the
reading of the document, that is, as each clause was read; while from the
testimony of Matayabas, Rivera and Sabido himself, it is to be gathered that the
patient was questioned by the latter only after the reading of the document,
although, according to Matayabas, it was read point by point, clause by clause.
Furthermore, if these three witnesses told the truth, there is still less reason to
believe that the patient was able at one time to apprehend all the contents of the
document and to understand the meaning of each one of the clauses of the
same. Therefore, the reply made by her on that occasion by the monosyllable
"Yes," if such monosyllable conveyed to her any meaning at all or expressed
any idea she had in mind, must have been vague and indefinite.

On the other hand, the petitioner himself, Elio, prepared the document, so he
testified, from a rough draft which had been furnished him by Sotera Barrientos
two or three days before and which contained the necessary data and
instructions. He has not said who made out this draft; he did not present it at the
trial, and it could not have been written by Sotera Barrientos. It was also Elio
who, on that same morning of the 26th of August, in his own house, in his
presence and under his direction, after having, as he testified, shown to the
testatrix the rough draft prepared by him, had Santos Matayabas make a clean
copy of it and immediately after the document had been written invited the four
witnesses and with them and Matayabas went to Sotera Barrientos house.
There Elio took a large if not a principal part in all that was done and in all that
happened in the immediate vicinity of the patient. He also it was who first
informed the sick woman of the reason for the presence of them all in the
house, and afterwards spoke to her about the signature. He served as the sole
and direct intermediary between the patient and Matayabas and the others to
inform them that the woman, so he testified, had chosen Matayabas to sign the
said document at her request. He afterwards witnessed all that Matayabas and
the rest then did there. Account must also be taken of the fact that Elio was the
only person to be benefited by the execution of the pretended will, for, as
hereinbefore stated, besides his appearing in that document as the sole devisee
of all the property of the testatrix, the statement appears in one of its clauses, as
being made by the testatrix, that her husband, Samuel Perry, had abandoned
her in her serious sickness a fact that was not proved and that she
revoked and annulled the testamentary provisions previously made by her,
which were no others than those contained in the document presented by this
same Perry for probate as the will of the said deceased and in which she
instituted him as her sole heir. There are, therefore, more than sufficient
reasons for holding that the document presented by Vicente Elio for probate as
the will of Sotera Barrientos does not express her true and spontaneous
desires. All the circumstances connected with the alleged execution of that so-
called will lead us to this conclusion.

In the case of Delafield v. Parish (25 N. Y., 9, 36), citing the case of Barry v.
Bultin (1 Curt. Eccl. Rep., 637), it is said that, "if a party writes or prepares a will
under which he takes a benefit, that is a circumstance which ought generally to
excite the suspicion of the court, and calls upon it to be vigilant and zealous in
examining the evidence in support of the instrument, in favor of which it ought
not to pronounce unless the suspicion is removed, and it is judicially satisfied
that the paper propounded does express the true will of the deceased." Many
decisions of the courts of various states of the United States establish the same
principle. In the case at bar, so many and of such a nature are the acts that
were performed by Vicente Elio with respect to the execution of the alleged will;
such was his participation in those which in turn were performed by the five
witnesses sought by him expressly for that purpose; and such are the
suspicions which, with regard to the whole matter, arise from the very significant
circumstance that, although the decedent was survived by her husband, two
sisters and a brother, he was the sole beneficiary under the alleged will, a
document which annulled the one previously executed by the said testatrix in
favor of her husband; that, after closely and carefully examining the evidence
introduced at the trial, not only do those suspicions linger, but we are convinced
that the document in question does not express the true will of the decedent.

Furthermore, in order that a will may be deemed valid, that is executed by one
person and signed by another on account of the testators inability to sign, the
law requires (sec. 618, Code Civ. Proc.) that it shall have been signed under the
express direction or by the express order of the testator. In the present case, as
we have already seen, when Elio and his companions took the said document to
the house of Sotera Barrientos, there to be executed as her will, it already
contained a statement in the paragraph preceding the space reserved for the
signatures of the testatrix and the witnesses, to the effect that, as the testatrix
was unable to sign the will by reason of her advanced age and her debility, she
authorized and begged Santos Matayabas to do so at her request. There is no
proof whatever that Vicente Elio was instructed by Sotera Barrientos to have
that statement inserted in the said document, when, as he testified, the drafting
and preparation of the instrument was commended to him. It is evident,
therefore, that it was all merely the idea and purpose of Elio himself. With
respect to this feature of the case, although from the testimony given by Santos
Matayabas and Feliciano Valdihueza it is gathered that the testatrix indicated by
means of signs, which, as Matayabas testified, were incomprehensible, her
27

desire that the latter should sign the document as she was unable to do so, yet
both the witnesses Rivera and Sabido gave it to be understood, in referring in
turn to that incident, that it was Elio himself who named Santos Matayabas as
the person who should sign for Sotera Barrientos, and this in fact must have
been so, because Elio said, in explaining also what then occurred there: "As she
(Sotera Barrientos) was unable to sign in spite of her insistence, I told her to
choose one of the five men in order that he might sign at her request. She
replied to me in a low voice, only heard by me, speaking in my ear the word
Santos, and pointed him out, for he was at her side;" and, finally, "in order that
the rest might know it, I repeated in a loud voice: Santos Matayabas?" and
"immediately thereafter Santos Matayabas signed." These statements all show
that it was Elios suggestion that Sotera Barrientos should select from among
them the one who should sign the document; that he was the only person who
spoke to the sick woman and in a low voice, placing his ear close to her, and
who, as he testified, heard her pronounce the name "Santos;" and, finally, also it
was he who in turn pointed out Santos Matayabas as the party designated by
her for the purpose mentioned. As in the document drawn up and prepared by
Elio himself Santos Matayabas was already designated to sign at the request of
Sotera Barrientos, before the latter was asked by Elio, as he stated, the
question mentioned by him; as Elio himself was to be benefited by the will then
attempted to be executed; and as Elios intervention in that selection was direct
and exclusive, for, as he testified, it was he alone who heard the word "Santos"
a selection which after all was entirely useless, since the person chosen for
the intended purpose was already designated in the document by Elio himself
no other conclusions can be reached than that Santos Matayabas not only
did not sign the said document under the express direction and order of Sotera
Barrientos, but also did not even do so at her request or in obedience to her
own will; because the will of Vicente Elio, who drew up and prepared the
document, was already expressed therein and to his will it appears, was that of
Sotera Barrientos subordinated in all respects, not only with reference to the
signing of the instrument, but also with regard to all else connected with the
alleged execution of the so-called will of this testatrix.

For the foregoing reasons, and taking account of the fact that Samuel Perry, the
widower of the deceased Sotera Barrientos, has also requested the probate of
the document presented by him, under date of September 21, 1910, as being
the last will and testament of the decedent a will the legality and due
execution of which were recognized by the lower court in the order appealed
from, notwithstanding which it was not admitted to probate for the reason that it
was held to have been revoked by the other later document presented by
Vicente Elio as the will of the said decedent we revoke the order appealed
from and deny the petition for the probate of the aforementioned document
dated August 26, 1912, presented by Vicente Elio as the last will and testament
of the said decedent, Sotera Barrientos; without special finding as to costs. In
view of this decision, the lower court will proceed as the law requires with regard
to the petition made by Samuel Perry for the probate of the document presented
by him dated September 21, 1910, as the last will and testament of the said
decedent. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.


January 19, 1906
G.R. No. 1641
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J .:
In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the
evidence adduced at the hearing that Julio Javellana, one of the witnesses, did
not attach his signature thereto in the presence of Isabelo Jena, another of the
witnesses, as required by the provisions of section 618 of the Code of Civil
Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q. 1641 Who first signed the will?
A. 1641 I signed it first, and afterwards Aniceto and the others.
Q. 1641 Who were those others to whom you have just referred?
A. 1641 After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw
Julio Javellana with the pen in his hand in position ready to sign (en
actitud de firmar). I believe he signed, because he was at the table. . . .
Q. 1641 State positively whether Julio Javellana did or did not
sign as a witness to the will.
28

A. 1641 I can't say certainly, because as I was leaving the house I
saw Julio Javellana with the pen in his hand, in position ready to sign. I
believe he signed.
Q. 1641 Why do you believe Julio Javellana signed?
A. 1641 Because he had the pen in his hand, which was resting
on the paper, though I did not actually see him sign.
Q. 1641 Explain this contradictory statement.
A. 1641 After I signed I asked permission to leave, because I was
in a hurry, and while I was leaving Julio had already taken the pen in his
hand, as it appeared, for the purpose of signing, and when I was near
the door I happened to turn my face and I saw that he had his hand with
the pen resting on the will, moving it as if for the purpose of signing.
Q. 1641 State positively whether Julio moved his hand with the
pen as if for the purpose of signing, or whether he was signing
A. I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem to have
been questioned by any of the parties to the proceedings, but the court,
nevertheless, found the following 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.
We can not agree with so much of the above finding of facts as holds that the
signature of Javellana was not signed in the presence of Jena, in compliance
with the provisions of section 618 of the Code of Civil Procedure. 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. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and
cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if
the witnesses are together for the purpose of witnessing the execution of the
will, and in a position to actually see the testator write, if they choose to do so;
and there are many cases which lay down the rule that the true test of vision is
not whether the testator actually saw the witness sign, but whether he might
have seen him sign, considering his mental and physical condition and position
at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between
the testator and the witnesses are equally applicable in determining whether the
witnesses signed the instrument in the presence of each other, as required by
the statute, and applying them to the facts proven in these proceedings we are
of opinion that the statutory requisites as to the execution of the instrument were
29

complied with, and that the lower court erred in denying probate to the will on
the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in
these proceedings was satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should therefore be admitted to
probate.
The judgment of the trial court is reversed, without especial condemnation of
costs, and after twenty days the record will be returned to the court form whence
it came, where the proper orders will be entered in conformance herewith. So
ordered.
Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.


C.A. No. 4 March 21, 1946
In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD
NEYRA, petitioner-appellee,
vs.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE
BLANCO, oppositors-appellants.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA.
BLANCO, petitioners-appellants,
vs.
TRINIDAD NEYRA and EUSTAQUIO MENDOZA, oppositors-appellees.
Lucio Javillonar for oppositors and appellants.
Alejandro M. Panis for applicants and appellees.
DE JOYA, J .:
This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of
the Court of First Instance of the City of Manila, on December 3, 1943, admitting
to probate a will dated November 3, 1942, executed by the deceased
Encarnacion Neyra; at the same time denying the probate of a previous will
dated September 14, 1939, alleged to have been executed by the said testatrix.
Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on
November 10, 1942, a petition in the Court of First Instance of Manila, for the
probate of said will.
On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo
Vda. de Blanco, who had not been named as beneficiaries in said will, filed on
opposition to the probate of the said will dated November 3, 1942, alleging (1)
that at the time of the alleged execution of the said will, the testatrix
Encarnacion Neyra no longer possessed testamentary capacity; (2) that her
thumb marks on said instrument had been procured by means of fraud by
petitioner Trinidad Neyra, and that Encarnacion Neyra never intended to
consider said document as will; (3) that the alleged will, dated November 3,
1942, had not been executed in the manner and form prescribed by law; and(4)
that Encarnacion Neyra, since September 14, 1939, had executed a will,
naming as beneficiaries said oppositors and others, and that said will had never
been revoked or amended in any manner whatsoever.
On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the
allegations in the opposition.
Subsequently, said oppositors filed a counter petition, asking for the probate of
the first will executed by Encarnacion Neyra, on September 14, 1939, marked
as Exhibit 16. On March 16, 1943, the legatees Trinidad Neyra and Eustaquio
Mendoza filed their opposition to the probate on said will marked as Exhibit 16,
and amended said opposition, on September 15, 1943, to which Teodora Neyra
and the others filed a reply, on September 20, 1943.
On the dates set for the hearing on the petition filed by Trinidad Neyra, and the
counter petition mentioned above, said petitioner as well as the oppositors,
presented evidence, testimonial and documentary. The witnesses presented by
the petitioner Trinidad Neyra were Mons. Vicente Fernandez, Rev. Fr. Teodoro
Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A. Aldecoa, Atty.
Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis,
who had acted as scrivener in the preparation of said will dated November 3,
1942.
Teodora Neyra and the other oppositors also presented several witnesses, the
principal among whom were Presentacion Blanco, Caferina de la Cruz, Acislo
Manuel, Dr. Dionisio Parulan, an alleged medical expert, and the oppositors
Teodora Neyra and Pilar de Guzman themselves.
30

After considering the evidence, the lower court rendered a decree admitting to
probate the will dated November 3, 1942; at the same time denying the probate
of the will dated September 14, 1939.
From said decision Teodora Neyra and the other oppositors appealed to the
Court of Appeals for the City of Manila, assigning several errors, which may be
reduced to the following, to wit, that the trial court erred (1) in finding that
Encarnacion Neyra wanted to make a new will; (2) in declaring that there was
reconciliation between Encarnacion Neyra and her sister Trinidad; (3) in
accepting as satisfactory the evidence submitted by the petitioner; (4) in
ignoring the evidence submitted by the oppositors; and (5) in not admitting to
probate the will dated September 14, 1939.
The evidence, testimonial and documentary, adduced during the trial of the case
in the court below, has satisfactorily and sufficiently established the following
facts:
That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving
certain properties and two children, by his first marriage, named Encarnacion
Neyra and Trinidad Neyra, and several other relatives; that after the death of
Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had
serious quarrels, in connection with the properties left by their deceased father,
and so serious were their dissensions that, after March 31, 1939, they had two
litigations in the Court of First Instance of Manila, concerning said properties
(Exhibits 8 and 9): In the first case, filed on March 31, 1939, Trinidad Neyra and
others demanded from Encarnacion Neyra et al. the annulment of the sale of
the property located at No. 366 Raon Street, Manila, and it was finally decided
in favor of the defendants in the Court of First Instance and in the Court of
Appeals, on December 21, 1943 (G.R. No. 8162, Exhibit 9).
In the second case, filed on October 25, 1939, Trinidad Neyra demanded from
Encarnacion Neyra, one-half () of the property described therein, and one-half
() of the rents, and the Court of First Instance decided in favor of the plaintiff,
but at the same time awarded in favor of the defendant P727.77, under her
counterclaim; and Trinidad Neyra again elevated the case to the Court of
Appeals for Manila (G.R. No. 8075) Exhibit 8, which was decided, pursuant to
the document of compromise marked as Exhibit D; and the petition for
reconsideration filed therein still remains undecided.
That Encarnacion Neyra, who had remained single, and who had no longer any
ascendants, executed a will on September 14, 1939, marked Exhibit 16,
disposing of her properties in favor of the "Congregacion de Religiosas de la
Virgen Maria" and her other relatives named Teodora Neyra, Pilar de Guzman
and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will
in favor of her only sister Trinidad Neyra, who had become her bitter enemy;
that when the said will was brought to the attention of the authorities of said
Congregation, after due deliberation and consideration, said religious
organization declined the bounty offered by Encarnacion Neyra, and said
decision of the Congregation was duly communicated to her; that in order to
overcome the difficulties encountered by said religious organization in not
accepting the generosity of Encarnacion Neyra, the latter decided to make a
new will, and for that purpose, about one week before her death, sent for one
Ricardo Sikat, an attorney working in the Law Offices of Messrs. Feria and LaO,
and gave him instructions for the preparation of a new will; that Attorney Sikat,
instead of preparing a new will, in accordance with the express instructions
given by Encarnacion Neyra, merely prepared a draft in the form of a codicil,
marked as Exhibit M, amending said will, dated September 14, 1939, again
naming said religious organization, among others, as beneficiary, and said draft
of a codicil was also forwarded to the authorities of the said religious
organization, for their consideration and acceptance.
In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from
Addison's disease, and on October 31, 1942, she sent for her religious adviser
and confessor, Mons. Vicente Fernandez of the Quiapo Church to make
confession, after which she expressed her desire to have a mass celebrated in
her house at No. 366 Raon Street, City of Manila, so that she might take holy
communion, in view of her condition; that following the request of Encarnacion
Neyra, Mons. Fernandez caused the necessary arrangements to be made for
the celebration of holy mass in the house of Encarnacion Neyra, and, as a
matter of fact, on November 1, 1942, holy mass was solemnized in her house,
Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said ceremony, on
which occasion, Encarnacion Neyra, who remained in bed, took holy
communion; that after said religious ceremony had been terminated, Father
Garcia talked to Encarnacion Neyra and advised reconciliation between the two
sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion Neyra accepted
said advice and at about noon of the same day (November 1, 1942), sent
Eustaquio Mendoza to fetch her sister Trinidad Neyra, who came at about 2:30
that same afternoon; that on seeing one another, the two greeted each other in
a most affectionate manner, and became reconciled; that the two had a long
and cordial conversation, in the course of which the two sisters also talked
about the properties left by their deceased father and their litigations which had
reached the Court of Appeals for the City of Manila, and they agreed to have the
said appeal dismissed, on the condition that the property involved therein,
consisting of a small house and lot, should be given exclusively to Trinidad
Neyra, on the condition that the latter should waive her claim for her share in the
rents of said property, while under the administration of Encarnacion Neyra, and
that the two should renounce their mutual claims against one another. It was
31

also agreed between the two sisters to send for Atty. Alejandro M. Panis, to
prepare the necessary document embodying the said agreement, but Attorney
Panis could come only in the afternoon of the following day, November 2, 1942,
when Encarnacion gave him instructions for the preparation of the document
embodying their agreement, and other instructions relative to the disposition she
wanted to make of her properties in her last will and testament; that Attorney
Panis prepared said document of compromise or agreement marked as Exhibit
D, as well as the new will and testament marked as Exhibit C, naming Trinidad
Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express
instructions given by Encarnacion Neyra, and said instruments were ready for
signature on November 3, 1942; that in the afternoon of that day, November 3,
1942; Attorney Panis read said will and testament marked as Exhibit D to
Encarnacion Neyra slowly and in a loud voice, in the presence of Fr. Teodoro
Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad
Neyra, and others, after which he asked her if its terms were in accordance with
her wishes, if she had anything else to add, or anything to be changed in said
will; and as Encarnacion Neyra stated that the terms of said will were in
accordance with her wishes and express instructions, she asked for the pad and
the will Exhibit C and, with the help of a son of herein petitioner, placed her
thumb mark at the foot of said will, in the presence of the three attesting
witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M.
Panis, after which the attesting witnesses signed at the foot of the document, in
the presence of the testatrix Encarnacion Neyra, and of each and everyone of
the other attesting witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra
and several others were also present.
On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack,
unexpectedly died.
Although the "Congregacion de Religiosas de la Virgen Maria" had again
decided not to accept the provision made in its favor by the testatrix
Encarnacion Neyra in the proposed codicil prepared by Atty. Ricardo Sikat, said
decision could not be communicated to the testatrix, before her death.
Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request
made on October 31, 1942, by Encarnacion Neyra for the celebration of holy
mass in her house, on November 1, 1942; that said mass was in fact
solemnized in her house, on that date, in the course of which the testatrix
Encarnacion Neyra took holy communion; that on the same day, after the mass,
Encarnacion held a long conversation with Father Garcia, in the course of
which, said priest advised her to have reconciliation with her sister Trinidad; and
that said advise was accepted by Encarnacion.
But the testimony of Trinidad Neyra, it has been shown that Encarnacion sent
Eustaquio Mendoza to fetch her, and that in fact she came to the house of
Encarnacion, at about 2:30 o'clock in the afternoon that same day, November 1,
1942, with said Eustaquio Mendoza; that on seeing one another, Encarnacion
and Trinidad Neyra greeted each other most affectionately, forgiving one
another, after which they talked about the property left by their deceased father
and the litigation pending between them; and the two sisters agreed to settle
their case, which had been elevated to the Court of Appeals for the City of
Manila, concerning a certain house and lot, on the understanding that said
property should be given exclusively to Trinidad, and that the latter should
renounce her claim against Encarnacion, for her share in the rents collected on
said property, and, at the same time, Encarnacion renounced her claim for
P727.77 against Trinidad; and that it was also agreed between the two sisters
that Atty. Alejandro M. Panis should be called to prepare the necessary papers
for the settlement of said case. Presentacion Blanco, a witness for the
oppositors, also testified substantially to the foregoing facts.
By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other
attesting witnesses, it has also been shown that Atty. Alejandro M. Panis came
in the afternoon of the following day, November 2, 1942, and received
instructions from Encarnacion Neyra, not only for the preparation of said
agreement, but also for the preparation of a new will, and consequently Attorney
Panis prepared said document of compromise and the will, dated November 3,
1942, which were both thumb marked, in duplicate, in the afternoon of that day,
by Encarnacion Neyra, who was then of sound mind, as shown by her
appearance and conversation, aided by a son of Trinidad Neyra, on her bed in
the sala, in the presence of the attesting witnesses, Dr. Moises B. Abad, Dr.
Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in the presence of
the testatrix and of each other.
Father Teodoro Garcia was also present at the signing of the will, at the request
of Encarnacion Neyra, and so was Trinidad Neyra.
On November 4, 1942, due to a heart attack as a consequence of Addison's
disease, perhaps, Encarnacion Neyra expired, at about 3 o'clock in the morning.
Oppositor Teodora Neyra, her young daughter Ceferina de la Cruz, and
Presentacion Blanco, daughter of oppositor Maria Jacobo Vda. de Blanco,
practically corroborated the testimony of the witnesses of the petitioner, with
reference to the signing of documents, in the bedroom of Encarnacion Neyra, on
November 3, 1942.
32

Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the
oppositors, testified, however, that when the thumb mark of Encarnacion Neyra
was affixed, as stated above, to the document of compromise in question, dated
November 3, 1942, she was sleeping on her bed in the sala; and that the
attesting witnesses were not present, as they were in the caida.
But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting
witnesses signed the documents thumb marked by Encarnacion Neyra, in
the sala near her bed, thus contradicting herself and Teodora Neyra and
Presentacion Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz
also testified that Encarnacion Neyra's thumb mark was affixed to the will, only
in the morning of November 4, 1942, by Trinidad Neyra and Ildefonso del Barrio,
when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature
and effects of Addison's disease, is absolutely unreliable. He had never seen or
talked to the testatrix Encarnacion Neyra.
According to the medical authorities, the cause or causes of the sleeping
sickness, known as Addison's disease, are not yet fully known: that persons
attacked by said decease often live as long as ten (10) years after the first
attack, while others die after a few weeks only, and that as the disease,
progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients
develop tuberculosis, and complications of the heart also appear. (Cecil,
Textbook of Medicine, 3d ed., 1935, pp. 1250, 1252, 1253; MaCrae, Osler's
Modern Medicine, 3d ed., Vol. V. pp. 272-279).
And it has been conclusively shown in this case that the testatrix Encarnacion
Neyra, at the age of 48, died on November 4, 1942, due to a heart attack, after
an illness of about two (2) years.
In connection with testamentary capacity, in several cases, this court has
considered the testimony of witnesses, who had known and talked to the
testators, more trustworthy than the testimony of alleged medical experts.
Testamentary capacity is the capacity to comprehend the nature of the
transaction in which the testator is engaged at the time, to recollect the property
to be disposed of, and the persons who would naturally be supposed to have
claims upon the testator, and to comprehend the manner in which the
instrument will distribute his property among the objects of his bounty.
(Bugnao vs. Ubag. 14 Phil., 163.)
Insomnia, in spite of the testimony of two doctors who testified for the opponents
to the probate of a will, who stated that it tended to destroy mental capacity, was
held not to affect the full possession of the mental faculties deemed necessary
and sufficient for its execution. (Caguioa vs. Calderon, 20 Phil., 400.) The
testatrix was held to have beencompos mentis, in spite of the physician's
testimony to the contrary, to the effect that she was very weak, being in the third
or last stage of tuberculosis. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27
Phil., 579.) The testimony testimony of the attending physician that the
deceased was suffering from diabetes and had been in a comatose for several
days, prior to his death, was held not sufficient to establish testamentary
incapacity, in view of the positive statement of several credible witnesses that
he was conscious and able to understand what said to him and to communicate
his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.) Where the mind
of the testator is in perfectly sound condition, neither old age, nor ill health, nor
the fact that somebody had to guide his hand in order that he might sign, is
sufficient to invalidate his will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after the execution of the
will, the testator intelligently and intelligibly conversed with other persons,
although lying down and unable to move or stand up unassisted, but could still
effect the sale of property belonging to him, these circumstances show that the
testator was in a perfectly sound mental condition at the time of executing the
will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination, frankly admitted
that, in the morning and also at about 6 o'clock in the afternoon of November 3,
1942, Encarnacion Neyra talked to her and that they understood each other
clearly, thus showing that the testatrix was really of sound mind, at the time of
the signing and execution of the agreement and will in question.
It may, therefore, be reasonably concluded that the mental faculties of persons
suffering from Addison's disease, like the testatrix in this case, remain
unimpaired, partly due to the fact that, on account of the sleep they enjoy, they
necessarily receive the benefit of physical and mental rest. And that like patients
suffering from tuberculosis, insomnia or diabetes, they preserve their mental
faculties until the moments of their death.
Judging by the authorities above cited, the conclusion made the trial court that
the testatrix Encarnacion Neyra was of sound mind and possessed
testamentary capacity, at the time of the execution of the will, cannot be
properly disturbed.
33

The oppositors also claim that the attesting witnesses were not present, at the
time that the testatrix thumbed marked the will in question, on her bed, in
the sala of the house, as they were allegedly in the caida. But it has been fully
shown that the attesting witnesses were present at the time of the signing and
execution of the agreement and will in question, in the sala, where the testatrix
was lying on her bed. The true test is not whether they actually saw each other,
at the time of the signing of the will, but whether they might have seen each
other sign, had they chosen to do so; and the attesting witnesses actually saw it
in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed by
the testatrix on the will is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan
and Yap Ca Llu, 27 Phil., 579.)
The oppositors as well as their principal witnesses are all interested parties, as
said oppositors had been named legatees in the will dated September 14, 1939,
but eliminated from the will dated November 3, 1942.
On the other hand, the witnesses for the petitioner are all trustworthy men, who
had absolutely no interest in the final outcome of this case. Two of them are
ministers of the Gospel, while the three attesting witnesses are professional
men of irreproachable character, who had known and seen and talked to the
testatrix.
Furthermore, the testimony of the oppositors and their witnesses, to the effect
that there could have been no reconciliation between the two sisters, and that
the thumb mark of Encarnacion Neyra was affixed to the document embodying
the agreement, while she was sleeping, on November 3, 1942, in their
presence; and that her thumb mark was affixed to the will in question, when she
was already dead, in the morning of November 4, 1942, within their view is
preposterous, to say the least. Said testimony is contrary to common sense. It
violates all sense of proportion. The oppositors and their witnesses could not
have told the truth; they have testified to brazen falsehoods; and they are,
therefore, absolutely unworthy of belief. And to the evidence of the oppositors is
completely applicable the rule falsus in uno, falsus in omnibus.
(Gonzales vs. Mauricio, 53 Phil., 728, 735.)
In the brief presented by counsel for the oppositors and the appellants, to show
the alleged improbability of the reconciliation of the two sisters and the
execution of the will, dated November 3, 1942, they have erroneously placed
great reliance on the facts that, up to October 31, 1942, the two sisters
Encarnacion and Trinidad Neyra were bitter enemies. They were banking
evidently on the common belief that the hatred of relatives is the most violent.
Dreadful indeed are the feuds of relatives, and difficult the reconciliation. But
they had forgotten the fact that Encarnacion Neyra was a religious and pious
woman instructed in the ancient virtues of Christian faith and hope and charity,
and that it was godly to forgive and better still to forget.
It was most natural that there should have been reconciliation between the two
sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of
the former, her only sister of the whole blood. The approach of imminent death
must have evoked in her the tenderest recollections of childhood. And believing
perhaps that her little triumphs had not always been fair to her sister who in fact,
had had successively instituted two suits against her, to recover what was her
due, and for which Encarnacion believed she must atone, she finally decided
upon reconciliation, so that she might depart in peace.
The record shows that, of the two, Encarnacion lived in greater opulence, and
that Trinidad had been demanding tenaciously her share; and as a Christian
woman, Encarnacion must have known that no one has any right to enrich
himself unjustly, at the expense of another. And it was, therefore, natural that
Encarnacion should desire reconciliation with her sister Trinidad, and provide for
her in her last will and testament.
As for Eustaquio Mendoza, who, according to the evidence, had served
Encarnacion Neyra for so many years and so well, it was also natural that she
should make some provision for him, as gratitude is the noblest sentiment that
springs from the human heart.
The conduct of Encarnacion Neyra, in making altogether a new will, with new
beneficiaries named therein, including principally her bitterest enemy of late,
which is completely incompatible with the will, dated September 14, 1939, may
really seem strange and unusual; but, as it has been truly said, above the logic
of the head is the feeling in the heart, and the heart has reasons of its own
which the head cannot always understand, as in the case of intuitive knowledge
of eternal verity.
As Encarnacion Neyra felt the advent of immortality, she naturally wanted to
follow "the path of the just, which is as the shining light that shineth more and
more unto the perfect day," so that her memory may be blessed. As a Christian
woman, she must have loved justice, mercy and truth and to follow the law, for
this is the whole duty of man.
In the present case, the court cannot find any reason or justification to alter the
conclusions set forth in the decree appealed from. This court will not reverse
any findings of fact by the trial court made upon conflicting testimony and
depending largely upon the credibility of witnesses, who testified in the presence
of the trial judge, unless the court below failed to take into consideration some
34

material facts or circumstances, or to weigh accurately all of the material facts
and circumstances presented to it for consideration. (Baltazar vs. Alberto, 33
Phil., 336; Melliza vs.Towle, 34 Phil., 345; Caragay vs. Urquiza, 53 Phil., 72, 79;
Garcia vs. Garcia de Bartolome, 63 Phil., 419.)
After a careful consideration of the evidence and the law of this case, we find it
legally impossible to sustain any of the errors assigned by the appellants. The
judgment appealed from is, therefore, affirmed, with costs against the
appellants. So ordered.


G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J .:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate
Ana Abangan's will executed July, 1916. From this decision the opponent's
appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets,
the first of which contains all of the disposition of the testatrix, duly signed at the
bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the
attestation clause duly signed at the bottom by the three instrumental witnesses.
Neither of these sheets is signed on the left margin by the testatrix and the three
witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should have
been denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the
left margin by the testator and three witnesses in the presence of each other,
Act No. 2645 (which is the one applicable in the case) evidently has for its
object (referring to the body of the will itself) to avoid the substitution of any of
said sheets, thereby changing the testator's dispositions. But when these
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 requiring this
signature on the margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the statute
such an intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity, another signature on its left
margin would be unneccessary; and if they do not guaranty, same signatures,
affixed on another part of same sheet, would add nothing. We cannot assume
that the statute regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in
letters placed on the upper part of the sheet, it is likewise clear that the object of
Act No. 2645 is to know whether any sheet of the will has been removed. But,
when all the dispositive parts of a will are written on one sheet only, the object of
the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the will, we
hold that in the one accompanying the will in question, the signatures of the
testatrix and of the three witnesses on the margin and the numbering of the
pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies, appertains
only to the witnesses and not to the testator since the latter does not attest, but
executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first
of which contains all the testamentary dispositions and is signed at the bottom
by the testator and three witnesses and the second contains only the attestation
35

clause and is signed also at the bottom by the three witnesses, it is not
necessary that both sheets be further signed on their margins by the testator
and the witnesses, or be paged.
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 primordal 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 frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the
testarix knew the dialect in which the will is written. But the circumstance
appearing in the will itself that same was executed in the city of Cebu and in the
dialect of this locality where the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to presume that she knew this dialect in
which this will is written.
For the foregoing considerations, the judgment appealed from is hereby
affirmed with costs against the appellants. So ordered.


EUTIQUIA AVERA, petitioner-appellee,
vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors
Cesar Garcia and Jose Garcia,objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J .:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the
will of one Esteban Garcia, contest was made by Marino Garcia and Juan
Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and
Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will
introduced one of the three attesting witnesses who testified with details not
necessary to be here specified that the will was executed with all necessary
external formalities, and that the testator was at the time in full possession of
disposing faculties. Upon the latter point the witness was corroborated by the
person who wrote the will at the request of the testator. Two of the attesting
witnesses were not introduced, nor was their absence accounted for by the
proponent of the will.
When the proponent rested the attorney for the opposition introduced a single
witness whose testimony tended to show in a vague and indecisive manner that
at the time the will was made the testator was so debilitated as to be unable to
comprehend what he was about.
After the cause had been submitted for determination upon the proof thus
presented, the trial judge found that the testator at the time of the making of the
will was of sound mind and disposing memory and that the will had been
properly executed. He accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the
will, and the only errors here assigned have reference to the two following
points, namely, first, whether a will can be admitted to probate, where opposition
is made, upon the proof of a single attesting witness, without producing or
accounting for the absence of the other two; and, secondly, whether the will in
question is rendered invalid by reason of the fact that 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.
Upon the first point, while it is undoubtedly true that an uncontested will bay be
proved by the testimony of only one of the three attesting witnesses,
nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an
elaborate examination of the American and English authorities that when a
contest is instituted, all of the attesting witnesses must be examined, if alive and
within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of
the attesting witnesses were not produced, but the probable reason is found in
the fact that, although the petition for the probate of this will had been pending
from December 21, 1917, until the date set for the hearing, which was April 5,
1919, no formal contest was entered until the very day set for the hearing; and it
is probable that the attorney for the proponent, believing in good faith the
probate would not be contested, repaired to the court with only one of the three
attesting witnesses at hand, and upon finding that the will was contested,
36

incautiously permitted the case to go to proof without asking for a postponement
of the trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule expounded
in the case above referred to; and were it not for a fact now to be mentioned,
this court would probably be compelled to reverse this case on the ground that
the execution of the will had not been proved by a sufficient number of attesting
witnesses.
It appears, however, that this point was not raised by the appellant in the lower
court either upon the submission of the cause for determination in that court or
upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for the first time
in this court. We believe this point is well taken, and the first assignment of error
must be declared not be well taken. This exact question has been decided by
the Supreme Court of California adversely to the contention of the appellant,
and we see no reason why the same rule of practice should not be observed by
us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second instance. In
the first place it eliminates the judicial criterion of the Court of First Instance
upon the point there presented and makes the appellate court in effect a court of
first instance with reference to that point, unless the case is remanded for a new
trial. In the second place, it permits, if it does not encourage, attorneys to trifle
with the administration of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while they are engaged
in other discussions more simulated than real. These considerations are, we
think, decisive.
In ruling upon the point above presented we do not wish to be understood as
laying down any hard and fast rule that would prove an embarrassment to this
court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in the correct decision
of the cases brought before it. What we mean to declare is that when we believe
that substantial justice has been done in the Court of First Instance, and the
point relied on for reversal in this court appears to be one which ought properly
to have been presented in that court, we will in the exercise of a sound
discretion ignore such question relates a defect which might have been cured in
the Court of First Instance if attention had been called to it there. In the present
case, if the appellant had raised this question in the lower court, either at the
hearing or upon a motion for a new trial, that court would have had the power,
and it would have been is duty, considering the tardy institution of the contest, to
have granted a new trial in order that all the witnesses to the will might be
brought into court. But instead of thus calling the error to the attention of the
court and his adversary, the point is first raised by the appellant in this court. We
hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that
case that the proponent of the will had obtained an order for a republication and
new trial for the avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but nevertheless
subsequently failed without any apparent reason to take their testimony. Both
parties in that case were therefore fully apprised that the question of the number
of witnesses necessary to prove the will was in issue in the lower court.
The second point involved in this case is whether, under section 618 of the
Code of Civil Procedure, as amended by Act No. 2645, it is essential to the
validity of a will in this jurisdiction that the names of the testator and the
instrumental witnesses should be written on the left margin of each page, as
required in said Act, and not upon the right margin, as in the will now before us;
and upon this we are of the opinion that the will in question is valid. It is true that
the statute says that the testator and the instrumental witnesses shall sign their
names on the left margin of each and every page; and it is undeniable that the
general doctrine is to the effect that all statutory requirements as to the
execution of wills must be fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it
would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of
the testator and witnesses shall be written on the left margin of each page
rather than on the right margin seems to be this character. So far as
concerns the authentication of the will, and of every part thereof, it can make no
possible difference whether the names appear on the left or no the right margin,
provided they are on one or the other. In Caraig vs. Tatlonghari (R. G. No.
12558, decided March 23, 1918, not reported), this court declared a will void
which was totally lacking in the signatures required to be written on its several
pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was
likewise declared void which contained the necessary signatures on the margin
of each leaf ( folio), but not in the margin of each page containing written matter.
37

The instrument now before us contains the necessary signatures on every page,
and the only point of deviation from the requirement of the statute is that these
signatures appear in the right margin instead of the left. By the mode of signing
adopted every page and provision of the will is authenticated and guarded from
possible alteration in exactly the same degree that it would have been protected
by being signed in the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between the
consequences of affixing the signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra,
where only the leaves, or alternate pages, were signed and not each written
page; for as observed in that case by our late lamented Chief Justice, it was
possible that in the will as there originally executed by the testratrix only the
alternative pages had been used, leaving blanks on the reverse sides, which
conceivably might have been filled in subsequently.
The controlling considerations on the point now before us were well stated In
Re will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr.
Justice Avancea, in a case where the signatures were placed at the bottom of
the page and not in the margin, said:
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution o will
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. 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 last will, must be disregarded.
In the case before us, where ingenuity could not suggest any possible prejudice
to any person, as attendant upon the actual deviation from the letter of the law,
such deviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment
appealed from will be affirmed. It is so ordered, with costs against the
appellants.


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. 1wph1.t
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
38

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 end and on the left
margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in
that of one another as witnesses (except for the missing signature of attorney
Natividad 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
39

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 non-heirs and speculators. Whether these
clauses are valid or not is a matter to be 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.
40

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.


G.R. No. L-21151 February 25, 1924
In re will of Antonio Vergel de Dios, deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough
for appellants.
Eusebio Orense & Antonio M. Opisso for appellees.
ROMUALDEZ, J .:
The question in this case is as to the validity of the document Exhibit A as a will,
which was propounded by Ramon J. Fernandez for probate, and contested by
Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court
of First Instance of Manila having denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court
in holding the attestation fatally defective and in not finding Act No. 2645 void.
The defects attributed to the will by the contestants are as follows, to wit:
(a) It was not sufficiently proven that the testator knew the contents of
the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the testator, or of
each other, nor with knowledge on the part of the testator that they were
signing his will.
(f ) The witnesses did not sign the attestation clause before the death of
the testator.
(g) This clause was written after the execution of the dispositive part of
the will and was attached to the will after the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are not
authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to
the testator, the latter's mind was perfectly sane and he understood it: that he
signed all the pages of the will proper, although he did not sign the page
containing the attestation clause; that while he did not personally call the
witnesses, yet the latter were invited by Attorney Lopez Lizo to act as such in
his presence. The law does not require that the testator precisely be the person
to request the witnesses to attest his will. It was also sufficiently established in
the record, beside being stated in the attestation clause, that the testator signed
the will in the presence of the three witnesses and that the latter, in turn, signed
it in the presence of the testator and of each other, the testator knowing that the
witnesses were signing his will; that the witnesses signed the attestation clause
before the death of the testator; that this clause, with the names of the
witnesses in blank, was prepared before the testator signed the will, and that the
sheet containing said clause, just as those of the will proper, was a loose sheet,
and that all the four sheets of which the will Exhibit A was actually composed
were kept together and are the very ones presented in this case; and finally, that
the signatures of the testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those
mentioned by the opponents, and it having been proven that the testator
41

executed said will in a language known by him and consciously, freely and
spontaneously, it would seen unnecessary to go further, and the matter might
be brought to a close right here, by holding the will in question valid and
allowable to probate, were it not for the fact that the trial court and the
opponents questioned the sufficiency and validity of the attestation clause
because the sheet on which it is written is not numbered, and it is not stated
there that the testator signed on the margin of each sheet of the will in the
presence of the three witnesses, or that the latter signed it is the presence of the
testator and of each other, and specially because said attestation clause is not
signed by the testator either at the margin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true that
it does not appeal on the upper part of the sheet, but it does not appear in its
text, the pertinent part of which is copied hereinafter, with the words, having
reference to the number of sheets of the will, underscored, including the page
number of the attestation:
* * * We certify that the foregoing document written in Spanish, a
language known by the testator Antonino Vergel de Dios, consisting
of three sheet actually used, correlatively enumerated, besides this
sheet . . . .
If, as stated in this clause, the foregoing document consists of three sheets,
besides that of the clause itself, which is in singular, it is clear that such a sheet
of the attestation clause is the fourth and that the will, including said sheet, has
four sheets. This description contained in the clause in question constitutes
substantial compliance with the requirements prescribed by the law regarding
the paging. So it was held by this Court in the case of Abangan vs. Abangan (40
Phil., 476), where the sheet containing the attestation, as well as the preceding
one, was also not paged. Furthermore the law, as we shall see later on, does
not require that the sheet containing nothing but the attestation clause, wholly or
in part, be numbered or paged. Consequently this lack of paging on the
attestation sheet does not take anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated that the
testator signed on the margin of each sheet of the will, in the presence of the
witnesses and the latter in the presence of each other, let us see what is said in
said clause on this point, and to this end its pertinent part is hereinafter
transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the aforesaid will in
our presence and we at his request did the same in his presence and in
that of each other as witnesses to the will, and lastly, the testator, as
well as we, as witnesses, signed in the same manner on the left margin
of each sheet. (Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant case mean,
and it in fact means nothing, but that the testator and the witnesses signed on
the left margin of each sheet of the will "in the same manner" in which they
signed at the bottom thereof, that is, the testator in the presence of the
witnesses and the latter in the presence of the testator and of each other. This
phrase in the same manner cannot, in view of the context of the pertinent part,
refer to another thing, and was used here as a suppletory phrase to include
everything and avoid the repetition of a long and difficult one, such as what is
meant by it. The same section 618 of the Code of Civil Procedure, in order to
avoid the repetition of the same long phrase about the testator having signed in
the presence of the witnesses and the latter in the presence of each other,
resorts to a similar expression in the second paragraph and says, "as
aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet
containing the attestation clause, this point was already decided in the above
cited case of Abangan vs. Abangan, where this court held that:
The testator's signature is not necessary in the attestation clause
because this, as its name implies, appertains only to the witnesses and
not to the testator.
In that case of Abangan vs. Abangan it was held that the signature of the
testator is not necessary in the attestation clause, but the theory is not
announced that such a clause is unnecessary to the validity to the will.
For this reason such doctrine does not annul the judgment in the case of Uy
Coque vs. Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among
others, was laid down that the attestation clause is necessary to the validity of
the will. One of the points on which greatest stress was laid in that case Uy
Coque is that the requirements of the law regarding the number of the pages
used, the signing of the will and of each of its pages by the testator in the
presence of three witnesses, and the attestation and signing of the will and of
each of its pages by the witnesses in the presence of each other cannot be
proven aliunde but by the attestation clause itself which must express the
complaince of the will with such requirements. But it was not held in that case of
Uy Coque that the signature of the testator was necessary in the attestation
clause, nor was such point discussed there, which was the point at issue in the
case of Abangan vs. Abangan, supra.
42

The appellees, however, argue that such clause in the case of Abangan vs.
Abangan begins at the bottom and on the same sheet in which the testamentary
provision terminated, that is to say, the will properly speaking. Even then if it is
intended to commit misrepresentation or fraud, which are the things that with the
requirements of the law for the making and attesting of wills it is intended to
avoid, it is just the same that the clause; as in the case of Abangan vs.
Abangan, begins at the bottom of the will properly speaking, as, like the case
before us, it is wholly contained in a separate sheet. The fact is that this
separate sheet, containing the attestation clause wholly or in part, is not signed
any place by the testator in the case of Abangan vs. Abangan, as it is not in the
present case.
Section 618 of the code of Civil Procedure, as amended by Act No. 2645,
contains three paragraphs, of which the first enumerates in general terms the
requirements to be met by a will executed after said Code took effect, to wit, that
the language or dialect in which it is written be known by the testator, that it be
signed by the latter or by another person in the name of the testator by his
express direction and in his presence, and that it be attested and signed by
three or more credible witnesses in the presence of the testator and of each
other.
These general rules are amplified in the next two paragraphs as to the special
requirements for the execution of the will by the testator and the signing thereof
by the witnesses, with which the second paragraph of the section deals, and as
to the attestation clause treated in the third and last paragraph of said section
618.
For this reason the second paragraph of this section 618 says:
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, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will properly
speaking, without any reference whatsoever to the attestation clause not treated
in this second paragraph. It is in this second paragraph which deals only with
the will (without including the attestation clause), that the signature or name of
the testator and those of the witnesses are mentioned as necessary on the left
margin of each and everyone of the sheets of the will (not of the attestation
clause), as well as the paging of said sheet (of the will, and not of the attestation
clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary
in the attestation clause? Let us see the last paragraph of this section 618 of the
Code which already deals with the requirements for the attestation clause. This
last paragraph reads thus:
The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
As may be seen this last paragraph refers to the contents of the text of the
attestation, not the requirements or signatures thereof outside of its text. It does
not require that the attestation be signed by the testator or that the page or
sheet containing it be numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a complement,
without which it cannot be probate and with which only not aliunde (Uy
Coque vs. Navas L. Sioca , supra) may the requirements to be stated in
its text be proven. The attestation clause must be prepared and signed,
as in the instant case, on the same occasion on which the will is
prepared and signed, in such a way that the possibility of fraud, deceit
or suppression of the will or the attestation clause be reduced to a
minimum; which possibility always exists, as experience shows, in spite
of the many precautions taken by the legislator to insure the true and
free expression of one's last will.
Second. That the will is distinct and different from the attestation,
although both are necessary to the validity of the will, similar, in our
opinion, to a document which is not public so long as it is not
acknowledged before a notary, the document being a distinct and
different thing from the acknowledgment, each of which must comply
with different requisites, among which is the signature of the maker
which is necessary in the document but not in the acknowledgment and
both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in
the second paragraph of section 618 of the Code of Civil Procedure.
43

Fourth. That the text of the attestation clause must express compliance
with the requirements prescribed for the will.
In the case at bar the attestation clause in question states that the requirements
prescribed for the will were complied with, and this is enough for it, as such
attestation clause, to be held as meeting the requirements prescribed by the law
for it.
The fact that in said clause the signature of the testator does not appear does
not affect its validity, for, as above stated, the law does not require that it be
signed by the testator.
We find no merit in the assignment of error raising the question as to the validity
of Act No. 2645, which is valid. For the purposes of this decision, it is not
necessary to reason out this conclusion, it being sufficient for the adjudication of
this case to hold the first error assigned by the appellants to have been
demonstrated.
The foregoing conclusions lead us to hold, as we do here by hold, that the
documents Exhibit A, as the last will and testament of the deceased Antonio
Vergel de Dios, meets all the requirements prescribed by the low now in force
and therefore it must be allowed to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court
proceed with the probate of the will Exhibit A in accordance with law, without
express pronouncement as to costs. So ordered.
Street, Malcolm, Avancea and Johns, JJ., concur.



Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J .:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully
the probate of what purports to be the last will and testament (Exhibit A) of Don
Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947,
almost six months after the document in question was executed. In the court
below, the present appellant specified five grounds for his opposition, to wit: (1)
that the deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the execution of the
will, he was wanting in testamentary as well as mental capacity due to advanced
age; (4) that, if he did ever execute said will, it was not executed and attested as
required by law, and one of the alleged instrumental witnesses was
incapacitated to act as such; and it was procured by duress, influence of fear
and threats and undue and improper pressure and influence on the part of the
beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez,
and the herein proponent, Jose S. Lopez; and (5) that the signature of the
testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these
words: "That the court a quo erred in holding that the document Exhibit "A" was
executed in all particulars as required by law." To this objection is added the
alleged error of the court "in allowing the petitioner to introduce evidence that
Exhibit "A" was written in a language known to the decedent after petitioner
rested his case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side
of a separate sheet. The first sheet is not paged either in letters or in Arabic
numerals. This, the appellant believes, is a fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud,
and to afford means of preventing the substitution or of defecting the loss of any
of its pages. (Abangan vs. Abangan, 40 Phil., 476.) In the present case, the
omission to put a page number on the first sheet, if that be necessary, is
supplied by other forms of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is clearly identified as the
first page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the first and
second lines on the second page are undeniably a continuation of the last
sentence of the testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered page contains the
caption "TESTAMENTO," the invocation of the Almighty, and a recital that the
testator was in full use of his testamentary faculty, all of which, in the logical
order of sequence, precede the direction for the disposition of the marker's
44

property. Again, as page two contains only the two lines above mentioned, the
attestation clause, the mark of the testator and the signatures of the witnesses,
the other sheet can not by any possibility be taken for other than page
one. Abangan vs. Abangan, supra, andFernandez vs. Vergel de Dios, 46 Phil.,
922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error,
the matter of the credibility of the witnesses is assailed under this heading. On
the merits we do not believe that the appellant's contention deserves serious
consideration. Such contradictions in the testimony of the instrumental
witnesses as are set out in the appellant's brief are incidents not all of which
every one of the witnesses can be supposed to have perceived, or to recall in
the same order in which they occurred.
Everyday life and the result of investigations made in the field of
experimental psychology show that the contradictions of witnesses
generally occur in the details of a certain incident, after a long series of
questioning, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an
incident are impressed in like manner, it is but natural that in relating
their impressions they should not agree in the minor details; hence, the
contradictions in their testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his
name. The reason for this was that the testator was suffering from "partial
paralysis." While another in testator's place might have directed someone else
to sign for him, as appellant contends should have been done, there is nothing
curious or suspicious in the fact that the testator chose the use of mark as the
means of authenticating his will. It was a matter of taste or preference. Both
ways are good. A statute requiring a will to be "signed" is satisfied if the
signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53
Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion
that the trial court communicated an abuse of discretion in allowing the appellant
to offer evidence to prove knowledge of Spanish by the testator, the language in
which the will is drawn, after the petitioner had rested his case and after the
opponent had moved for dismissal of the petition on the ground of insufficiency
of evidence. It is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this discretion will
not be reviewed except where it has clearly been abused. (64 C. J., 160.) More,
it is within the sound discretion of the court whether or not it will allow the case
to be reopened for the further introduction of evidence after a motion or request
for a nonsuit, or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the request,
motion, or demurrer, or has granted it or has denied the same, or after the
motion has been granted, if the order has not been written, or entered upon the
minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced
their respective direct proofs, they are allowed to offer rebutting evidence only,
but, it has been held, the court, for good reasons, in the furtherance of justice,
may permit them to offer evidence upon their original case, and its ruling will not
be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally, additional evidence is allowed when it is newly discovered, or where it
has been omitted through inadvertence or mistake, or where the purpose of the
evidence is to the evidence is to correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission
to present evidence on the testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will
for its silence on the testator's understanding of the language used in the
testament. There is no statutory requirement that such knowledge be expressly
stated in the will itself. It is a matter that may be established by proof aliunde.
This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the
probate of a will written in Tagalog was ordered although it did not say that the
testator knew that idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog region, from
which the court said "a presumption arises that said Maria Tapia knew the
Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament
of Don Sixto Lopez is affirmed, with costs.


G.R. No. 189984 : November 12, 2012
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST
WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B.
LOPEZ, Petitioner, v. DIANA JEANNE LOPEZ, MARYBETH DE LEON and
VICTORIA L. TUAZON, Respondents.
45

R E S O L U T I O N
PERLAS-BERNABE, J .:
This Petition for Review on Certiorari assails the March 30, 2009
Decision
1
rll and October 22, 2009 Resolution
2
rll of the Court of Appeals
(CA) in CA-G.R. CV No. 87064 which affirmed the August 26, 2005
Decision
3
rll of the Regional Trial Court of Manila, Branch 42 (RTC), in SP.
Proc. No. 99-95225 disallowing the probate of the Last Will and Testament of
Enrique S. Lopez.
The Factual Antecedents
On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B.
Lopez, and their four legitimate children, namely, petitioner Richard B. Lopez
(Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon
(Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before
Enriques death, he executed a Last Will and Testament
4
rll on August 10,
1996 and constituted Richard as his executor and administrator.
On September 27, 1999, Richard filed a petition for the probate of his father's
Last Will and Testament before the RTC of Manila with prayer for the issuance
of letters testamentary in his favor. Marybeth opposed the petition contending
that the purported last will and testament was not executed and attested as
required by law, and that it was procured by undue and improper pressure and
influence on the part of Richard. The said opposition was also adopted by
Victoria.
After submitting proofs of compliance with jurisdictional requirements, Richard
presented the attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro;
Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized the
will, Atty. Perfecto Nolasco (Atty. Nolasco). The instrumental witnesses testified
that after the late Enrique read and signed the will on each and every page, they
also read and signed the same in the latter's presence and of one another.
Photographs of the incident were taken and presented during trial. Manalo
further testified that she was the one who prepared the drafts and revisions from
Enrique before the final copy of the will was made.
Likewise, Atty. Nolasco claimed that Enrique had been his client for more than
20 years. Prior to August 10, 1996, the latter consulted him in the preparation of
the subject will and furnished him the list of his properties for distribution among
his children. He prepared the will in accordance with Enrique's instruction and
that before the latter and the attesting witnesses signed it in the presence of one
another, he translated the will which was written in English to Filipino and added
that Enrique was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone witness, Gregorio B.
Paraon (Paraon), Officer-in-Charge of the Notarial Section, Office of the Clerk of
Court, RTC, Manila. His testimony centered mainly on their findings that Atty.
Nolasco was not a notary public for the City of Manila in 1996, which on cross
examination was clarified after Paraon discovered that Atty. Nolasco was
commissioned as such for the years 1994 to 1997.
Ruling of the RTC
In the Decision dated August 26, 2005,
5
rll the RTC disallowed the probate of
the will for failure to comply with Article 805 of the Civil Code which requires a
statement in the attestation clause of the number of pages used upon which the
will is written. It held that while Article 809 of the same Code requires mere
substantial compliance of the form laid down in Article 805 thereof, the rule only
applies if the number of pages is reflected somewhere else in the will with no
evidence aliunde or extrinsic evidence required. While the acknowledgment
portion stated that the will consists of 7 pages including the page on which the
ratification and acknowledgment are written, the RTC observed that it has 8
pages including the acknowledgment portion. As such, it disallowed the will for
not having been executed and attested in accordance with law.
Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order
dated October 26, 2005.
6
rll
Ruling of the Court of Appeals
On March 30, 2009,
7
rll the CA issued the assailed decision dismissing the
appeal. It held that the RTC erroneously granted Richard's appeal as the Rules
of Court is explicit that appeals in special proceedings, as in this case, must be
made through a record on appeal. Nevertheless, even on the merits, the CA
found no valid reason to deviate from the findings of the RTC that the failure to
state the number of pages of the will in the attestation clause was fatal. It noted
that while Article 809 of the Civil Code sanctions mere substantial compliance
with the formal requirements set forth in Article 805 thereof, there was a total
omission of such fact in the attestation clause. Moreover, while the
acknowledgment of the will made mention of "7 pages including the page on
which the ratification and acknowledgment are written," the will had actually 8
pages including the acknowledgment portion thus, necessitating the
presentation of evidence aliunde to explain the discrepancy. Richard's motion
46

for reconsideration from the decision was likewise denied in the second assailed
Resolution
8
rll dated October 22, 2009.
Hence, the instant petition assailing the propriety of the CA's decision.
Ruling of the Court
The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and
809 of the Civil Code provide:chanroblesvirtuallawlibrary
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. (underscoring supplied)
ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
The law is clear that the attestation must state the number of pages used upon
which the will is written. The purpose of the law is to safeguard against possible
interpolation or omission of one or some of its pages and prevent any increase
or decrease in the pages.
9
rll
While Article 809 allows substantial compliance for defects in the form of the
attestation clause, Richard likewise failed in this respect. The statement in the
Acknowledgment portion of the subject last will and testament that it "consists of
7 pages including the page on which the ratification and acknowledgment are
written"
10
rll cannot be deemed substantial compliance. The will actually
consists of 8 pages including its acknowledgment which discrepancy cannot be
explained by mere examination of the will itself but through the presentation of
evidence aliund.
11
rll On this score is the comment of Justice J.B.L. Reyes
regarding the application of Article 809, to wit:chanroblesvirtuallawlibrary
x x x The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings.
12
rll (Emphasis supplied)
Hence, the CA properly sustained the disallowance of the will. Moreover, it
correctly ruled that Richard pursued the wrong mode of appeal as Section 2(a),
Rule 41 of the Rules of Court explicitly provides that in special proceedings, as
in this case, the appeal shall be made by record on
appeal.blrlllbrr
WHEREFORE, premises considered, the petition is DENIED.rllbrr
SO ORDERED.


G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by
ERNESTO G. CASTILLO, Respondents.
47

D E C I S I O N
TINGA, J .:
The core of this petition is a highly defective notarial will, purportedly executed
by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of
80. In refusing to give legal recognition to the due execution of this document,
the Court is provided the opportunity to assert a few important doctrinal rules in
the execution of notarial wills, all self-evident in view of Articles 805 and 806 of
the Civil Code.
A will whose attestation clause does not contain the number of pages on
which the will is written is fatally defective. A will whose attestation clause
is not signed by the instrumental witnesses is fatally defective. And
perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these
defects is sufficient to deny probate. A notarial will with all three defects is
just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial will.
Full and faithful compliance with all the detailed requisites under Article 805 of
the Code leave little room for doubt as to the validity in the due execution of the
notarial will. Article 806 likewise imposes another safeguard to the validity of
notarial wills that they be acknowledged before a notary public by the testator
and the witnesses. A notarial will executed with indifference to these two codal
provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix
Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which
was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read
in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc,
Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at
memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at
binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-
ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat
(Executor) ng habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa
akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang
panahon, yaong mga bahay na nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng
karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24
na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang
lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block
24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay walang
pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng
huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak
ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo,
1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na
ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling
Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana
sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawat
dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa
sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat
dahon ng kasulatan ito.
48

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
LAMBERTO C. LEAO
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 # 1437-977-8
1

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 petitioners 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 decedents 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
oppositors 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
bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi
ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat
49

isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawat 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 oppositors 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 oppositors argument that the will was not numbered
correlatively in 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 oppositors assertion that the signature of the testatrix on the will
is a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix
and the due execution of the will.
8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision
dated 17 August 1995, the Court of Appeals reversed the trial court and ordered
the dismissal of the petition for probate.
9
The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate.
10

Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that
"the number of pages used in a notarial will be stated in the attestation clause"
is merely directory, rather than mandatory, and thus susceptible to what he
termed as "the substantial compliance rule."
11

The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number
of pages of the will.
12
There was an incomplete attempt to comply with this
requisite, a space having been allotted for the insertion of the number of pages
in the attestation clause. Yet the blank was never filled in; hence, the requisite
was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in
the process Uy Coque v. Navas L. Sioca
13
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
50

will.
15
In ruling that the will could not be admitted to probate, the Court made the
following consideration which remains highly relevant to this day: "The purpose
of requiring the number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that the removal of a
sheet would completely change the testamentary dispositions of the will
and in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand,
the total number of sheets is stated in the attestation clause the falsification of
the document will involve the inserting of new pages and the forging of the
signatures of the testator and witnesses in the margin, a matter attended with
much greater difficulty."
16

The case of In re Will of Andrada concerned a will the attestation clause of
which failed to state the number of sheets or pages used. This consideration
alone was sufficient for the Court to declare "unanim[ity] upon the point that the
defect pointed out in the attesting clause is fatal."
17
It was further observed that
"it cannot be denied that the x x x requirement affords additional security against
the danger that the will may be tampered with; and as the Legislature has seen
fit to prescribe this requirement, it must be considered material."
18

Against these cited cases, petitioner cites Singson v. Florentino
19
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

51

Both Uy Coque and Andrada were decided prior to the enactment of the Civil
Code in 1950, at a time when the statutory provision governing the formal
requirement of wills was Section
618 of the Code of Civil Procedure.
22
Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages
of the will is extant from Section 618.
23
However, the enactment of the Civil
Code in 1950 did put in force a rule of interpretation of the requirements of wills,
at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states:
"In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will
was in fact executed and attested in substantial compliance with all the
requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that "the underlying and fundamental objective permeating the provisions
on the [law] on [wills] in this project consists in the [liberalization] of the manner
of their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern
tendency] in respect to the formalities in the execution of wills."
24
However,
petitioner conveniently omits the qualification offered by the Code Commission
in the very same paragraph he cites from their report, that such liberalization be
"but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the
testator."
25

Caneda v. Court of Appeals
26
features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
clause in wills.
27
Uy Coque and Andrada are cited therein, along with several
other cases, as examples of the application of the rule of strict
construction.
28
However, the Code Commission opted to recommend a more
liberal construction through the "substantial compliance rule" under Article 809.
A cautionary note was struck though by Justice J.B.L. Reyes as to how Article
809 should be applied:
x x x The rule must be limited to disregarding those defects that can be supplied
by an examination of the will itself: whether all the pages are consecutively
numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages,
and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only
check against perjury in the probate proceedings.
29
(Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages of
the will in the attestation clause is one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to allow the probate of a will
whose attestation clause failed to state that the witnesses subscribed their
respective signatures to the will in the presence of the testator and of each
other,
30
the other omission cited by Justice J.B.L. Reyes which to his estimation
cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is
that omission which can be supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would
result in the invalidation of the attestation clause and ultimately, of the will
itself."
31
Thus, a failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to state that the
witnesses signed in one anothers presence should be considered a fatal flaw
since the attestation is the only textual guarantee of compliance.
32

The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law
in requiring the clause to state the number of pages on which the will is written
is to safeguard against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages.
33
The failure to
state the number of pages equates with the absence of an averment on the part
of the instrumental witnesses as to how many pages consisted the will, the
execution of which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the
will states elsewhere in it how many pages it is comprised of, as was the
situation in Singson andTaboada. 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
52

inclinations of the members of the Code Commission in incorporating Article
805, the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or
intercalation of notarial wills.
34
Compliance with these requirements, however
picayune in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey property post mortem in the
manner established in the will.
35
The transcendent legislative intent, even as
expressed in the cited comments of the Code Commission, is for the
fruition of the testators incontestable desires, and not for the indulgent
admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the
left-hand margin of the will, they do not appear at the bottom of the attestation
clause which after all consists of their averments before the notary public.
Cagro v. Cagro
36
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) Justices
38
considered the signature requirement
had been substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly signed,
rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not
appear at the bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of the
will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures at
the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on
the left-hand margin conform substantially to the law and may be deemed as
their signatures to the attestation clause. This is untenable, because said
signatures are in compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be admitted as sufficient, it would be easy
to add such clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
39

The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign
each page of the will, from the requisite that the will be "attested and subscribed
by [the instrumental witnesses]." The respective intents behind these two
classes of signature are distinct from each other. The signatures on the left-
hand corner of every page signify, among others, that the witnesses are aware
that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to
the statements contained in the attestation clause itself. Indeed, the attestation
clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned
attestation clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do appear on the page
were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses signatures on each and every page, the fact must be noted that it is
the attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator,
who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their
signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by
the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that "every will must be
acknowledged before a notary public by the testator and the witnesses" has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805
53

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.


G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-
NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
D E C I S I O N
54

CARPIO, J .:
The Case
Before the Court is a petition for review
1
assailing the Decision
2
of the Court of
Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of Appeals
sustained the Resolution
3
of the Regional Trial Court of Kabankalan, Negros
Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will
and testament of Alipio Abada ("Abada").
The Antecedent Facts
Abada died sometime in May 1940.
4
His widow Paula Toray ("Toray") died
sometime in September 1943. Both died without legitimate children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of
First Instance of Negros Occidental (now RTC-Kabankalan) a
petition,
5
docketed as SP No. 070 (313-8668), for the probate of the last will and
testament ("will") of Abada. Abada allegedly named as his testamentary heirs
his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the
son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada
left no will when he died in 1940. Caponong further alleged that the will, if Abada
really executed it, should be disallowed for the following reasons: (1) it was not
executed and attested as required by law; (2) it was not intended as the last will
of the testator; and (3) it was procured by undue and improper pressure and
influence on the part of the beneficiaries. Citing the same grounds invoked by
Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz,
Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et
al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi
Tronco, et al."), also opposed the petition. The oppositors are the nephews,
nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition
6
before the RTC-
Kabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will
and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al.
opposed the petition on the same grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition
7
before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the issuance in his name of letters of
administration of the intestate estate of Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate
the will of Toray. Since the oppositors did not file any motion for reconsideration,
the order allowing the probate of Torays will became final and executory.
8

In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda
Caponong-Noble ("Caponong-Noble") Special Administratrix of the estate of
Abada and Toray.
9
Caponong-Noble moved for the dismissal of the petition for
probate of the will of Abada. The RTC-Kabankalan denied the motion in an
Order dated 20 August 1991.
10

Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S.
Layumas discovered that in an Order dated 16 March 1992, former Presiding
Judge Edgardo Catilo had already submitted the case for decision. Thus, the
RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that
the petitioner through his testimony and the deposition of Felix Gallinero was
able to establish the regularity of the execution of the said Will and further, there
being no evidence of bad faith and fraud, or substitution of the said Will, the Last
Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed
probate.
As prayed for by counsel, Noel Abbellar
11
is appointed administrator of the
estate of Paula Toray who shall discharge his duties as such after letters of
administration shall have been issued in his favor and after taking his oath and
filing a bond in the amount of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada
shall continue discharging her duties as such until further orders from this Court.
SO ORDERED.
12

The RTC-Kabankalan ruled on the only issue raised by the oppositors in their
motions to dismiss the petition for probate, that is, whether the will of Abada has
an attestation clause as required by law. The RTC-Kabankalan further held that
the failure of the oppositors to raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
55

In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed
the Resolution of the RTC-Kabankalan. The appellate court found that the RTC-
Kabankalan properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary
public;
13

3. Whether the will must expressly state that it is written in a language
or dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and if so,
whether the attestation clause complies with the requirements of the
applicable laws;
5. Whether Caponong-Noble is precluded from raising the issue of
whether the will of Abada is written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the
will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting
to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are the
Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of Civil
Procedure
14
which governed the execution of wills before the enactment of the
New Civil Code.
The matter in dispute in the present case is the attestation clause in the will of
Abada. Section 618 of the Code of Civil Procedure, as amended by Act No.
2645,
15
governs the form of the attestation clause of Abadas will.
16
Section 618
of the Code of Civil Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the preceding
section,
17
shall be valid to pass any estate, real or personal, nor charge or affect
the same, unless it be written in the language or dialect known by the testator
and signed by him, or by the testators name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of each other. 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,
on the left margin, and said pages shall be numbered correlatively in letters
placed on the upper part of each sheet. The attestation shall state the number of
sheets or pages used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will are the
following:
(1) The will must be written in the language or dialect known by the
testator;
(2) The will must be signed by the testator, or by the testators name
written by some other person in his presence, and by his express
direction;
(3) The will must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and
the instrumental witnesses of the will must sign each and every page of
the will on the left margin;
(5) The pages of the will must be numbered correlatively in letters
placed on the upper part of each sheet;
56

(6) The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator signed the
will and every page of the will, or caused some other person to write his
name, under his express direction, in the presence of three witnesses,
and the witnesses witnessed and signed the will and all pages of the will
in the presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that it is written
in a language or dialect known to the testator. Further, she maintains that the
will is not acknowledged before a notary public. She cites in particular Articles
804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect
known to the testator.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. xxx
18

Caponong-Noble actually cited Articles 804 and 806 of the New Civil
Code.
19
Article 804 of the Old Civil Code is about the rights and obligations of
administrators of the property of an absentee, while Article 806 of the Old Civil
Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of
the New Civil Code is taken from Section 618 of the Code of Civil
Procedure.
20
Article 806 of the New Civil Code is taken from Article 685 of the
Old Civil Code
21
which provides:
Art. 685. The notary and two of the witnesses who authenticate the will must be
acquainted with the testator, or, should they not know him, he shall be identified
by two witnesses who are acquainted with him and are known to the notary and
to the attesting witnesses. The notary and the witnesses shall also endeavor to
assure themselves that the testator has, in their judgment, the legal capacity
required to make a will.
Witnesses authenticating a will without the attendance of a notary, in cases
falling under Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure
22
repealed Article 685 of the Old Civil
Code. Under the Code of Civil Procedure, the intervention of a notary is not
necessary in the execution of any will.
23
Therefore, Abadas will does not
require acknowledgment before a notary public.1awphi1.nt
Caponong-Noble points out that nowhere in the will can one discern that Abada
knew the Spanish language. She alleges that such defect is fatal and must
result in the disallowance of the will. On this issue, the Court of Appeals held
that the matter was not raised in the motion to dismiss, and that it is now too late
to raise the issue on appeal. We agree with Caponong-Noble that the doctrine
of estoppel does not apply in probate proceedings.
24
In addition, the language
used in the will is part of the requisites under Section 618 of the Code of Civil
Procedure and the Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Nobles contention must still fail. There is no statutory
requirement to state in the will itself that the testator knew the language or
dialect used in the will.
25
This is a matter that a party may establish by
proofaliunde.
26
Caponong-Noble further argues that Alipio, in his testimony, has
failed, among others, to show that Abada knew or understood the contents of
the will and the Spanish language used in the will. However, Alipio testified that
Abada used to gather Spanish-speaking people in their place. In these
gatherings, Abada and his companions would talk in the Spanish
language.
27
This sufficiently proves that Abada speaks the Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an attestation clause. The attestation
clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de todas y cada una de las hojas del
mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia
de nosotros y del testador al pie de este documento y en el margen izquierdo
de todas y cada una de las dos hojas de que esta compuesto el mismo, las
cuales estan paginadas correlativamente con las letras "UNO" y "DOS en la
parte superior de la carrilla.
28

Caponong-Noble proceeds to point out several defects in the attestation clause.
Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de todas y
cada una de las dos hojas de que esta compuesto el mismo" which means "in
the left margin of each and every one of the two pages consisting of the same"
shows that the will consists of two pages. The pages are numbered correlatively
with the letters "ONE" and "TWO" as can be gleaned from the phrase "las
cuales estan paginadas correlativamente con las letras "UNO" y "DOS."
57

Caponong-Noble further alleges that the attestation clause fails to state
expressly that the testator signed the will and its every page in the presence of
three witnesses. She then faults the Court of Appeals for applying to the present
case the rule on substantial compliance found in Article 809 of the New Civil
Code.
29

The first sentence of the attestation clause reads: "Suscrito y declarado por el
testador Alipio Abada como su ultima voluntad y testamento en presencia de
nosotros, habiendo tambien el testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las hojas del mismo." The English
translation is: "Subscribed and professed by the testator Alipio Abada as his last
will and testament in our presence, the testator having also signed it in our
presence on the left margin of each and every one of the pages of the same."
The attestation clause clearly states that Abada signed the will and its every
page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause does
not indicate the number of witnesses. On this point, the Court agrees with the
appellate court in applying the rule on substantial compliance in determining the
number of witnesses. While the attestation clause does not state the number of
witnesses, a close inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. InDichoso de Ticson v. De Gorostiza,
30
the
Court recognized that there are two divergent tendencies in the law on wills, one
being based on strict construction and the other on liberal construction.
In Dichoso, the Court noted thatAbangan v. Abangan,
31
the basic case on the
liberal construction, is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,
32
the petitioner, arguing for liberal
construction of applicable laws, enumerated a long line of cases to support her
argument while the respondent, contending that the rule on strict construction
should apply, also cited a long series of cases to support his view. The Court,
after examining the cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and inflexible,
which would be applicable to all cases. 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 will,
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. x x x.
An attestation clause 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
of the memory of the subscribing witnesses, or other casualty, they may still be
proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the purpose of the law. x x
x
33
1a\^/phi1.net
We rule to apply the liberal construction in the probate of Abadas will. Abadas
will clearly shows four signatures: that of Abada and of three other persons. It is
reasonable to conclude that there are three witnesses to the will. The question
on the number of the witnesses is answered by an examination of the will itself
and without the need for presentation of evidence aliunde. The Court explained
the extent and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule 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.l^vvphi1.net They only
permit a probe into the will, an exploration within 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.
34
(Emphasis supplied)
The phrase "en presencia de nosotros" or "in our presence" coupled with the
signatures appearing on the will itself and after the attestation clause could only
mean that: (1) Abada subscribed to and professed before the three witnesses
that the document was his last will, and (2) Abada signed the will and the left
margin of each page of the will in the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and
all its pages in the presence of the testator and of each other. This Court has
ruled:
Precision of language in the drafting of an attestation clause is desirable.
However, it is not imperative that a parrot-like copy of the words of the statute
be made. It is sufficient if from the language employed it can reasonably be
deduced that the attestation clause fulfills what the law expects of it.
35

58

The last part of the attestation clause states "en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros y del testador." In English, this
means "in its witness, every one of us also signed in our presence and of the
testator." This clearly shows that the attesting witnesses witnessed the signing
of the will of the testator, and that each witness signed the will in the presence
of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January
2001 in CA-G.R. CV No. 47644.
SO ORDERED.


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 filedex 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.
59

For the validity of a formal notarial will, does Article 805 of the Civil Code require
that the testatrix and all the three instrumental and attesting witnesses sign at
the end of the will and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the
left margin, and all the pages shall be numbered correlatively in
letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of
the instrumental witnesses, and that the lacier witnesses and
signed the will and the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require
that, for a notarial will to be valid, it is not enough that only the testatrix signs at
the "end" but an the three subscribing witnesses must also sign at the same
place or at the end, in the presence of the testatrix and of one another because
the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where
the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for the
extrinsic validity of the wig that the signatures of the subscribing witnesses
should be specifically located at the end of the wig after the signature of the
testatrix. He contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where the
signatures are to be found as long as this space or particular location wherein
the signatures are found is consistent with good faith and the honest frailties of
human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or
signed at its end by the testator himself or by the testator's name written by
another person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation
consists in witnessing the testator's execution of the will in order to see and take
note mentally that those things are, done which the statute requires for the
execution of a will and that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of Identification of such paper as the will which was
executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered
view that the will in this case was subscribed in a manner which fully satisfies
the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page
of the will attested not only to the genuineness of the signature of the testatrix
but also the due execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial
departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the
liberalization of the manner of their execution with the end in view of giving the
testator more freedom in expressing his last wishes but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise
of undue and improper pressure and influence upon the testator. This objective
is in accord with the modern tendency in respect to the formalities in the
execution of a will" (Report of the Code commission, p. 103).
60

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that
were not for the defect in the place of signatures of the witnesses, he would
have found the testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the
present case when the instrumental witnesses signed at the left margin of the
sole page which contains all the testamentary dispositions, especially so when
the will was properly Identified by subscribing witness Vicente Timkang to be the
same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause
failed to state the number of pages used in writing the will. This would have
been a fatal defect were it not for the fact that, in this case, it is discernible from
the entire wig that it is really and actually composed of only two pages duly
signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by
the testatrix at the end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina dos" comprises
the attestation clause and the acknowledgment. The acknowledgment itself
states that "This Last Will and Testament consists of two pages including this
page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation
clause must state the number of pages used:
The law referred to is article 618 of the Code of Civil Procedure,
as amended by Act No. 2645, which requires that the
attestation clause shall state the number of pages or sheets
upon which the win is written, which requirement has been held
to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is
intended to be bequeathed (In re will of Andrada, 42 Phil., 180;
Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs.
Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must
contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will
have the effect of invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different.
While the attestation clause does not state the number of
sheets or pages upon which the will is written, however, the last
part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion
takes this case out of the rigid rule of construction and places it
within the realm of similar cases where a broad and more liberal
view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies
a similar liberal approach:
... Impossibility of substitution of this page is assured not only
(sic) the fact that the testatrix and two other witnesses did sign
the defective page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not
be so strictly and literally interpreted as to penalize the testatrix
on account of the inadvertence of a single witness over whose
conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component
pages is sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated in
Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision
on reconsideration) 'witnesses may sabotage the will by
muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the
respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court is ordered to allow the
probate of the wig and to conduct further proceedings in accordance with this
decision. No pronouncement on costs.
SO ORDERED.



61

G.R. No. L-18799 March 26, 1965
HON. JOSE F. FERNANDEZ, Judge of Court of First Instance, Negros
Occidental,
ASUNCION MARAVILLA, ET AL., petitioners,
vs.
HERMINIO MARAVILLA, respondent.
Jose Gutierrez David for petitioners.
Paredes, Poblador, Cruz and Nazareno for respondent.
RE S O L U T I O N
*

BARRERA, J .:
The present case concerns merely a question of the propriety of the
appointment of Eliezar Lopez as co-special administrator of the estate left by the
deceased, Digna Maravilla. In the Court of First Instance of Negros Occidental
where this case originated, the surviving spouse, Herminio Maravilla, was
appointed special administrator pending the appointment of a regular
administrator. After the disallowance of the probate of the will by the trial court
wherein Herminio Maravilla was named as executor, some of the intestate heirs
of the deceased petitioned the trial court to appoint Eliezar Lopez as special co-
administrator to protect their interests during the pendency of the appeal taken
by Herminio Maravilla against the disallowance of the will. The trial court
granted the petition and extended an appointment in favor of Eliezar Lopez as
special co-administrator. Herminio Maravilla, questioning the propriety and
necessity for the appointment of a special co-administrator, filed a petition
for certiorari in the Court of Appeals. Lopez answered the petition contending
that the Court of Appeals cannot take cognizance of the case as it is not in aid
of its appellate jurisdiction inasmuch as the properties involved in the
administration are worth more than P200,000.00. The Court of Appeals, acting
adversely on the contention of Lopez, rendered a decision setting aside the
appointment of Lopez as co-special administrator. Lopez came to this court for
relief. This Court, in its original decision, ruled that the question involved being
one of administration of the entire estate valued at more than P200,000.00 the
matter came within its exclusive appellate jurisdiction. Nevertheless, this Court
exercising its own jurisdiction, set aside the order of the trial court appointing
Lopez as co-special, administrator. Lopez filed a motion for reconsideration and
this court, on May 22, 1964, denied the same. Subsequently, a second motion
for reconsideration was filed predicated on the contention that it having, been
found that the Court of Appeals had no appellate jurisdiction over the case, the
findings contained in its decision could not be the basis for the setting aside of
the order of the trial court. On December 23, 1964, this Court issued a
resolution to the following effect:
Considering the second motion for reconsideration filed by the
petitioners, the respondent's opposition thereto, and the petitioners'
rejoinder, and considering further that under the appealed order of the
lower court, the appointment of Eliezar Lopez as special co-
administrator would bring no material damage to respondent special
administrator Herminio Maravilla, the decision of this Court is hereby
amended, to sustain the aforesaid order, pending final determination of
the main case (G.R. No. L-23225) or until a different set of
circumstances than those alleged by petitioners as now prevailing,
would justify another action by this Court in the, main case.
SO ORDERED.
Maravilla in turn filed a motion for reconsideration of this resolution, and for the
first time represented to this Court that in the appointment of Eliezar Lopez, the
lower court acted arbitrarily and in abuse of its discretion in not affording
Maravilla the opportunity to be heard and to present evidence to show why
Eliezar Lopez should not be appointed as co-special administrator. In view of
this Last motion for reconsideration, the Court required Eliezar Lopez to present
his answer and later set the incident for hearing. During the oral argument,
reference was made to the manner in which the lower court proceeded in the
matter of the appointment of Eliezar Lopez. Maravilla's counsel vehemently
contended that the lower court acted hastily and harshly in depriving counsel full
opportunity to present his side of the case. He also called attention to an order
of the lower court dated February 15, 1965 directing Eliezar Lopez:
(1) to file a supplemental inventory within a period of thirty (30) days
from February 15, 1965 to expire on March 15, 1965, supplying the
alleged omission committed by Maravilla in the inventory that was filed
by him in the proceedings;
(2) to sue for the annulment of all contracts that are allegedly illegal and
invalid entered into by Maravilla during or before his administration; and
(3) to receive free quedans from the Hawaiian Philippines, Inc. in order
to be able to pay the disbursements due and to deposit the balance
thereof.
It being apparent that confusion will result if this order is implemented thus
defeating the purpose of co-administration which presupposes joint and
62

coordinative action, this Court issued a temporary restraining order enjoining the
implementation of said order pending the resolution of this incident by this
Court.1wph1.t
During the hearing, counsel for Maravilla offered to withdraw from the temporary
administration of the estate in favor of an impartial third party if only for the sake
of saving the entire estate from the confusion which will necessarily result if the
present hostile special co-administrators are permitted to remain.
Considering all circumstances of this case, and in view of the resolution of this
Court dated December 28, 1964 sustaining the appointment of Eliezar Lopez as
co-special administrator only "pending final determination of the main case, G.R.
No. L-23225, or until a different set of circumstances than those alleged by
petitioners as now prevailing, would justify another action by the court," it would
seem justifiable to reconsider the entire matter in the face of the subsequent
developments that have supervened. However, the matter of appointment of co-
special administrator being primarily within the sound discretion of the trial court,
we deem it proper to remand this case to the trial court for further proceedings,
with the suggestion that due consideration be given to the offer of Maravilla to
withdraw as special administrator in favor of an impartial third party, which
would seem to be a fair and just solution of the controversy and would amply
protect the interest of both parties.
WHEREFORE, this case is hereby ordered remanded to the court of origin for
further proceedings in consonance with the views herein expressed. So
ordered.


G.R. No. L-40804 January 31, 1978
ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A.
DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA, AMOR DANILA,
MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA
NISTA, HEIRS OF DANIEL NISTA, MOISES NISTA, DOMINGO NISTA and
ADELAIDA NISTA,petitioners,
vs.
COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS
OF BUENAVENTURA GUERRA,respondents.
Ernesto C. Hidalgo for petitioners.
Romulo S. Brion & Florentino M. Poonin for private respondents.

GUERRERO, J .:
Appeal by way of certiorari of the decision
1
of the Court of Appeals in CA-G.R.
No. 49915-R, entitled "Adelaida Nista Petitioner-appellee, versus Buenaventura
Guerra, et al., Oppositors -Appellants, " denying and disallowing the probate of
the second last will and codicil of the late Eugenia Danila previously probated by
the Court of First Instance of Laguna Branch III at San Pablo City.
The facts are rotated in the appealed decision. the pertinent portions of which
state:
It appears that on June 2, 1966, Adelaida Nista who claimed to
be one of the instituted heirs, filed a petition for the probate of
the alleged will and testament dated March 9, 1963 (Exhibit H)
and codicil dated April 18, 1963 (Exhibit L) of the late Eugenia
Danila who died on May 21, 1966. The petitioner prayed that
after due notice and proper hearing, the alleged will and codicil
be probates and allowed and that she or any other person be
appointed as administrator of the testatrix's estate. She also
prayed that in case no opposition thereto be interposed and the
value of the estate be less than P10,000.00, said estate be
summarily settled in accordance with the Rules.
Buenaventura and Marcelina (Martina) both surnamed Guerra
filed an opposition on July 18, 1966 and an amended opposition
on August 19, 1967, to the petition alleging among others that
they are the legally adopted son and daughter of the late
spouses Florentino Guerra and Eugenia Danila (Exhibit 1); that
the purported will and codicil subject of the petition (Exhibits H
and L) were procured through fraud and undue influence; that
the formalities requited by law for the execution of a will and
codicil have not been complied with as the same were not
properly attested to or executed and not expressing the free will
and deed of the purported testatrix; that the late Eugenia Danila
had already executed on November 5, 1951 her last will and
testament (Exhibit 3) which was duly probated (Exhibit 4) and
not revoked or annulled during the lifetime of the testatrix, and
that the petitioner is not competent and qualified to act as
administration of the estate.
63

On November 4, 1968, the petitioner and the oppositors,
assisted by their respective counsels, entered into a
Compromise Agreement with the following terms and
conditions, thus:
1. That oppositors Buenaventura Guerra and Marcelina
(Martina) Guerra are the legally adopted son and daughter,
respectively, of the deceased spouses, Florentino Guerra and
Eugenia Manila;
2. That Florentino Guerra pre-deceased Eugenia Danila that
Eugenia Danila died on May 21, 1966, at San Pablo City, but
during her lifetime, she had already sold, donated or disposed
of all her properties, some of which to Marcelina Martina
Guerra, as indicated and confirmed in paragraph 13 of the
Complaint in Civil Case No. SP620, entitled Marcelina Guerra
versus Adelaida Nista, et al., and Which We hereby 'likewise
admit and confirm;
3. That, however, with respect to the parcel of riceland covered
by TCT No. T-5559 of the Register of Deeds of San Pablo City,
which oppositors believe to be the estate left and undisposed of
at the time of the death of the owner thereof, Eugenia Danila it
now appears that there is a Deed of Donation covering the
same together with another parcel of coconut land situated at
Barrio San Ignacio, San Pablo City, with an area of 19,905
sq.m., and covered by Tax Declaration No. 31286, executed by
the late Eugenia Danila in favor of Adelaida Nista, as per Doc.
No. 406, Page No. 83, Series of 1966 under Notarial Register III
of Notary Public Pio Aquino of San Pablo city;
4. That inasmuch as the above-mentioned parcel of coconut
and has been earlier donated inter vivos and validly conveyed
on November 15, 1965 by the late Eugenia Danila to Marcelina
(Martina) Guerra as shown by Doc. No. 237, Page No. 49,
Series of 1965, under Notarial Register XV of Notary Public
Atty. Romulo S. Brion of San Pablo City, the inclusion of said
parcel in the subsequent donation to Adelaida Nista is
admittedly considered a mistake and of no force and effect and
will in no way prejudice the ownership and right of Marcelina
Martina Guerra over the said parcel; that as a matter of fact
Whatever rights and interests Adelaida Nista has or may still
have thereon are already considered waived and renounced in
favor of Marcelina Martina Guerra;
5. That in view of the fact that the riceland mentioned in
paragraph 3 of the foregoing appears to have already been
disposed of by Eugenia Danila in favor of petitioner Adelaida
Nista which the parties hereto do not now contest, there is
therefore no more estate left by the said deceased Eugenia
Danila to he disposed of by the will sought to be probated in this
proceedings; that consequently, and for the sake of peace and
harmony money among the relations and kins and adopted
children of the deceased Eugenia Danila and with the further
aim of settling differences among themselves, the will and
codicil of Eugenia Danila submitted to this Honorable Court by
the petitioner for probate, are considered abrogated and set
aside;
6. That as the late Eugenia Danila has incurred debts to private
persons during her lifetime, which in addition to the burial and
incidental expenses amounts to SIX THOUSAND EIGHT
HUNDRED PESOS (P6,800.00) her adopted daughter,
Marcelina (Martina) Guerra is now determined to settle the
same, but herein petitioner Adelaida Nista hereby agrees to
contribute to Marcelina (Martina) Guerra for the settlement of
the said indebtedness in the amount of THREE THOUSAND
FOUR HUNDRED PESOS (P3,400.00), Philippine Currency,
the same to be delivered by Adelaida Nista to Marcelina
(Martina) Guerra at the latter's residence at Rizal Avenue, San
Pablo City, on or about February 28, 1969;
7. That should there be any other property of the deceased
Eugenia Danila that may later on be discovered to be
undisposed of as yet by Eugenia Danila during her lifetime, the
same should be considered as exclusive property of her
adopted children and heirs, Buenaventura Guerra and
Marcelina (Martina) Guerra and any right of the petitioner and
signatories hereto, with respect to said property or properties,
shall be deemed waived and renounced in favor of said
Buenaventura and Marcelina (Martina) Guerra; and
8. That with the exception of the foregoing agreement, parties
hereto waived and renounce further claim against each other,
and the above-entitled case. (Exh. 6)
64

This Agreement was approved by the lower court in a judgment
readings as follows:
WHEREFORE, said compromise agreement, being not contrary
to public policy, law and moral, the same is hereby approved
and judgment is hereby rendered in accordance with the terms
and conditions set forth in the above- quoted compromise
agreement, which is hereby made an integral part of the
dispositive portion of this decision, and the parties are strictly
enjoined to comply with the same. (Exh. 7)
On November 16, 1968, Rosario de Ramos, Miguel Danila Felix
Danila Miguel Gavino Amor Danila Consolacion Santos and
Miguel Danila son of the late Fortunato Danila filed a motion for
leave to intervene as co-petitioners alleging that being instituted
heirs or devisees, they have rights and interests to protect in the
estate of the late Eugenia Danila They also filed a reply partly
admitting and denying the material allegations in the opposition
to the petition and alleging among other things, that oppositors
repudiated their institution as heirs and executors when they
failed to cause the recording in the Register of Deeds of San
Pablo City the will and testament dated November 5, 1951
(Exhibit 3) in accordance with the Rules and committed acts of
ingratitude when they abandoned the testatrix and denied her
support after they managed, through fraud and undue influence,
to secure the schedule of partition dated January 15, 1962. The
Intervenors prayed for the probate and/or allowance of the will
and codicil (Exhibits H and L), respectively and the appointment
of any of them in as administrator of said estate.
On December 6, 1968, the intervenors also filed a motion for
new trial and/or re-hearing and/or relief from judgment and to
set aside the judgment based on compromise dated November
5, 1968. The oppositors interposed an opposition to the motion
to which the intervenors filed their reply.
The lower court resolved the motions in an order the dispositive
portion reading, thus:
FOR ALL THE FOREGOING the Court hereby makes the
following dispositions
(1) Movants Rosario de Ramos, Miguel C. Danila Miguela
Gavino Amor Danila Consolacion Santos, Miguel A. Danila and
Raymundo Danila are allowed and admitted to intervene to this
proceeding as Party Petitioners; and likewise admitted in their
reply to the amended opposition of November 11, 1968;
(2) The compromise agreement dated October 15, 1968 by and
between Petitioner Adelaida Nista and oppositors
Buenaventura Guerra and Marcelina Guerra Martina is
disapproved, except as regards their respective lawful rights in
the subject estate; and, accordingly, the judgment on
compromise rendered by this Court on November 5, 1968 is
reconsidered and set aside; and
(3) The original Petition and amended opposition to probate of
the alleged will and codicil stand.
xxx xxx xxx
The lower court also denied the motion for the appointment of a
special administrator filed by the intervenors.
xxx xxx xxx
A motion for reconsideration of the foregoing order was filed by
the intervenors co-petitioners but the motion was denied.
xxx xxx xxx
On February 9, 1971, a motion for the substitution of Irene,
Crispina, Cristina Casiano, Edilberto Felisa, Guerra in place of
their father, the oppositor Buenaventura Guerra who died on
January 23, 1971, was filed and granted by the lower court.
After trial on the merits, the lower court rendered its decision dated July 6, 1971
allowing the probate of the wilt In that decision, although two of the attesting
witness Odon Sarmiento and Rosendo Paz, testified that they did not see the
testatrix Eugenia Danila sign the will but that the same was already signed by
her when they affixed their own signatures thereon, the trial court gave more
weight and ment to the .'straight-forward and candid" testimony of Atty. Ricardo
Barcenas, the Notary Public who assisted in the execution of the wilt that the
testatrix and the three (3) instrumental witnesses signed the will in the presence
65

of each other, and that with respect to the codicil the same manner was likewise
observed as corroborated to by the testimony of another lawyer, Atty. Manuel
Alvero who was also present during the execution of the codicil.
The dispositive portion of the decision reads:
WHEREFORE, it appearing that the late Eugenia Danila had
testamentary capacity when she executed the will, Exh. H., and
the codicil Exh. L, and that said will and codicil were duly signed
by her and the three attesting witnesses and acknowledged
before a Notary Public in accordance with the formalities
prescribed by law, the said will and codicil are hereby declared
probated. No evidence having been adduced regarding the
qualification and fitness of any of the intervenors- co-petitioners
to act as executors, the appointment of executors of the will and
codicil is held pending until after due hearing on the matter.
SO ORDERED.
Oppositors Marcelina Guam and the heirs of Buenaventura Guam appealed the
foregoing decision to the Court of Appeals The latter court, in its derision dated
May 12, 1975 ruled that the lower court acted correctly in setting aside its
judgment approving the Compromise Agreement and in allowing the intervenor
petitioners to participate in the instant probate proceedings; however, it
disallowed the probate of the will on the that the evidence failed to establish that
the testatrix Eugenia Danila signed her will in the presence of the instrumental
witness in accordance with Article 805 of the Civil Code, as testified to by the
two surviving instrumental witnesses.
In this present appeal petitioners vigorously insists on constitutional grounds the
nullity of the decision of respondent court but We deem it needless to consider
the same as it is not necessary in resolving this appeal on the following
assigned errors:
(A) THE COURT OF APPEALS ERRED GRAVELY IN NOT
HAVING GIVEN WEIGHT TO THE MANIFESTATION
CLAUSES IN THE TESTAMENT AND CODICIL ANNEX B
(PETITION) AND INSTEAD IT GAVE CREDENCE TO THE
TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN
ATTESTATION CLAUSES AND THE TESTIMONIAL
EVIDENCE AND NOTARIAL ACKNOWLEDGEMENT OF THE
NOTARY PUBLIC; AND
(B) THAT THE COURT OF APPEALS ERRED IN HAVING
DENIED THE PROBATE OF THE WILL AND CODICIL
DESPITE CONVINCING EVIDENCE FOR THEIR
ALLOWANCE.
We reverse the judgment of the Court of Appeals and restore the decision of the
trial court allowing probate of the will and codicil in question.
The main point in controversy here is whether or not the last testament and its
accompanying codicil were executed in accordance with the formalities of the
law, considering the complicated circumstances that two of the attesting
witnesses testified against their due execution while other non-subscribing
witnesses testified to the contrary.
Petitioners argue that the attestation clauses of the win and codicil which were
signed by the instrumental witnesses are admissions of due execution of the
deeds, thus, preventing the said witnesses from prevaricating later on by
testifying against due execution. Petitioners further maintain that it is error for
respondent court to give credence to the testimony of the biased witnesses as
against their own attestation to the fact of due execution and over the
testimonial account of the Notary Public who was also present during the
execution and before whom right after, the deeds were acknowledged.
Private respondents, on the other hand reiterate in their contention the
declaration of the two surviving witnesses, Odon Sarmiento and Rosendo Paz,
that the win was not signed by the testatrix before their presence, which is
strengthened by two photographic evidence showing only the two witnesses in
the act of signing, there being no picture of the same occasion showing the
testatrix signing the will. Respondent court holds the view that where there was
an opportunity to take pictures it is not understandable why pictures were taken
of the witnesses and not of the testatrix. It concludes that the absence of the
latter's picture to complete the evidence belies the testimony of Atty. Barcenas
that the testatrix and the witnesses did sign the will and the codicil in the
presence of each other.
The oppositors' argument is untenable. There is ample and satisfactory
evidence to convince us that the will and codicil were executed in accordance
with the formalities required by law. It appears positively and convincingly that
the documents were prepared by a lawyer, Atty. Manuel Alvero The execution of
the same was evidently supervised by his associate, Atty. Ricardo Barcenas
and before whom the deeds were also acknowledged. The solemnity
surrounding the execution of a will is attended by some intricacies not usually
within the comprehension of an ordinary layman. The object is to close the door
66

against bad faith and fraud, to avoid substitution of the will and testament, and
to guarantee their truth and authenticity.
2
If there should be any stress on the
participation of lawyers in the execution of a wig, other than an interested party,
it cannot be less than the exercise of their primary duty as members of the Bar
to uphold the lofty purpose of the law. There is no showing that the above-
named lawyers had been remiss in their sworn duty. Consequently, respondent
court failed to consider the presumption of ty in the execution of the questioned
documents. There were no incidents brought to the attention of the trial court to
arouse suspicion of anomaly. While the opposition alleged fraud and undue
influence, no evidence was presented to prove their occurrence. There is no
question that each and every page of the will and codicil carry the authentic
signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the
attestation claim far from being deficient, were properly signed by the attesting
witnesses. Neither is it disputed that these witnesses took turns in signing the
will and codicil in the presence of each other and the testatrix. Both instruments
were duly acknowledged before a Notary Public who was all the time present
during the execution.
The presumption of regularity can of course be overcome by clear and
convincing evidence to the contrary, but not easily by the mere expediency of
the negative testimony of Odon Sarmiento and Rosendo Paz that they did not
see the testatrix sign the will. A negative testimony does not enjoy equal
standing with a positive assertion, and faced with the convincing appearance of
the will, such negative statement must be examined with extra care. For in this
regard
It has also been held that the condition and physical
appearance of a questioned document constitute a valuable
factor which, if correctly evaluated in the light of surrounding
circumstances, may help in determining whether it is genuine or
forged. Subscribing witnesses may forget or exaggerating what
they really know, saw, heard or did; they may be biased and,
therefore, tell only half-truths to mislead the court or favor one
party to the prejudice of the others. This cannot be said of the
condition and Physical appearance of the questioned
document. Both, albeit silent, will reveal the naked truth, hiding
nothing, forgetting nothing, and exaggerating nothing.
3

Unlike other deeds, ordinary wills by necessity of law must contain an
attestation clause Which, significantly is a separate memorandum or record of
the facts surrounding that the conduct of execution. Once signed by the
attesting witnesses, it that compliance with the indispensable legal formalities
had been observed. This Court had previously hold that the attestation clause
basically contracts the pretense of undue ex execution which later on may be
made by the attesting witnesses.
4
In the attestation clause, the witnesses do
not merely attest to the signature of the testatrix but also to the proper execution
of the will, and their signature following that of the testatrix show that they have
in fact at not only to the genuineness of the testatrix's signature but also to the
due execution of the will as embodied in the attention clause.
5
By signing the
wilt the witnesses impliedly to the truth of the facts which admit to probate,
including the sufficiency of execution, the capacity of the testatrix, the absence
of undue influence, and the like.
6

In this jurisdiction, all the attesting witness to a will if available, must be called to
prove the wilt Under this circumstance, they become "forced witnesses" " and
their declaration derogatory to the probate of the will need not bind the
proponent hence, the latter may present other proof of due exemption even if
contrary to the testimony of or all of the at, testing witness.
7
As a rule, if any or
all of the submitting witness testify against the due execution of the will, or do
not remember having attested to it, or are otherwise of doubtful ability, the will
may, nevertheless, be allowed if the court is satisfied from the testimony of other
witness and from all the evidence presented that the will was executed and
attested in the manner by law.
8
Accordingly, although the subscribing witnesses
to a contested will are the best witness in connection with its due execution, to
deserve full credit, their testimony must be reasonable, and unbiased; if
otherwise it may be overcome by any competent evidence, direct or
circubstantial.
9

In the case at bar, the s bear a disparity in the quality of the testimonies of Odon
Sarmiento and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo
A. Barcenas, on the other. The testimony of Odon Sarmiento was contradicted
by his own admission. Though his admission to the effect that "when Eugenia
Danila signed the testament (he) and the two other attesting witnesses Rosendo
Paz and Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was
made extrajudicially, it was not squarely refuted when inquired upon during the
trial.
With respect to the testimony of Rosendo Paz, it had been refuted by the
declaration of Atty. Ricardo A. Barcenas. The records show that this attesting
witness was fetched by Felix Danila from his place of work in order to act as
witness to a wilt Rosendo Paz did not know what the document he signed was
all about. Although he performed his function as an attesting witness, his
participation was rather passive. We do not expect, therefore, that his testimony,
"half-hearted" as that of Odon Sarmiento, be as candid and complete as one
proceeding from a keen mind fully attentive to the details of the execution of the
deeds. Quite differently, Atty. Ricardo A. Barcenas, more than a direct witness
67

himself, was Purposely there to oversee the accomplishment of the will and
codicil. His testimony is an account of what he actually heard and saw during
the conduct of his profession. There is no evidence to show that this lawyer was
motivated by any material interest to take sides or that his statement is truth
perverted.
It has been regarded that the function of the Notary Public is, among others, to
guard against any illegal or immoral arrangements in the execution of a will.
10
In
the absence of any showing of self-interest that might possibly have warped his
judgment and twisted his declaration, the intervention of a Notary Public, in his
professional capacity, in the execution of a will deserves grave
consideration.
11
An appraise of a lawyer's participation has been succinctly
stated by the Court inFernandez v. Tantoco, supra, this wise:
In weighing the testimony of the attesting witnesses to a will, his
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 anticipate 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 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.
One final point, the absence of a photograph of the testator Eugenia Danila in
the act of signing her will. The fact that the only pictures available are those
which show the Witnesses signing the will in the presence of the testatrix and of
each other does not belie the probability that the testatrix also signed the will
before the presence of the witnesses. We must stress that the pictures are
worthy only of what they show and prove and not of what they did not speak of
including the events they failed to capture. The probate of a will is a proceeding
not embued with adverse character, wherein courts should relax the rules on
evidence "to the end that nothing less than the best evidence of which the
matter is susceptible" should be presented to the court before a reported will
may be probated or denied probate.
12

We find here that the failure to imprint in photographs all the stages in the
execution of the win does not serve any persuasive effect nor have any
evidentiary value to prove that one vital and indispensable requisite has not
been acted on. Much less can it defeat, by any ordinary or special reason, the
presentation of other competent evidence intended to confirm a fact otherwise
existent but not confirmed by the photographic evidence. The probate court
having satisfied itself that the win and codicil were executed in accordance with
the formalities required by law, and there being no indication of abuse of
discretion on its part, We find no error committed or any exceptional
circumstance warranting the subsequent reversal of its decision allowing the
probate of the deeds in question.
WHEREFORE, the decision of respondent Court of Appeals is hereby reversed
in so far its it disallowed the probate of the will and codicil. With costs against
respondents.
SO ORDERED.


G.R. No. L-17304 May 22, 1922
In re will of Maria Roque y Paraiso, deceased.
CEFERINO ALDABA, petitioner-appellee,
vs.
LUDOVICO ROQUE, opponent-appellant.
Lucero and Tengo for appellant.
Vicente Platon for appellee.
VILLAMOR, J .:
It appears from the record of the case that on July 9, 1918, Maria Roque y
Paraiso, the widow of Bruno Valenzuela, resident of the barrio of Mambog,
municipality of Malolos, Province of Bulacan, executed her last will and
testament in the Tagalog dialect with the help of Vicente Platon and in the
presence of three witnesses who signed the attestation clause and each of the
four pages of the testament. Maria Roque died on December 3, 1919, and when
her will was filed in court for probate, it was contested by Ludovico Roque on
the ground that it had not been prepared nor executed in conformity with the
requirements and solemnities prescribed by law.
After due proceedings had been had, the Court of First Instance of Bulacan by
its decision rendered on February 27th of the following year, pronounced the
testament in question valid, and ordered its probate, appointing Ceferino Aldaba
as the administrator of the estate.
68

The errors assigned by the appellant are two, to wit: "That each and every folio
of the said testament is not paged correlatively in letter," and "that the said will
lacks the attestation clause required by law."
We have examined document Exhibit 4 which is the will in question and we find
at the end thereof the following in Tagalog which translated into English reads:
This document expresses my last and spontaneous will, and is my last
will and testament, which was drawn by the lawyer, Don Vicente Platon,
at my direction, and everything contained in this testament has been
ordained and directed by me to said Vicente Platon in order that it might
be embodied in this testament, and after this testament has been drawn
up, I directed him to read it so that I might hear all its contents, and I
have heard and understood all the contents of this document which is
my last will, wherefore, and not knowing how to write, I have requested
Don Vicente Platon to write and sign my name in my stead hereon; I
declare that this testament is composed of four sheets, actually used,
that the sheets are paged with the letter A, B, C, and d, and above my
name I have placed the thumb mark of my right hand in the presence of
the subscribing witnesses, and that all the witnesses have signed in my
presence and of each other here at Malolos, Bulacan, this 9th day of the
month of July, 1918; and I also declare that at my request Don Vicente
Platon has written my name on the left margin of all pages of this
testament, in the presence of the witnesses, and all the witnesses have
also signed all the pages of this testament on the left margin in my
presence and that of each other.
X (Her thumb mark)
MARIA ROQUE Y PARAISO,
Per VICENTE PLATON.
(Sgd.) REGINO E. MENDOZA,
Witness.
(Sgd.) IGNACIO ANIAG,
Witness.
(Sgd.) CEFERINO ALDABA.
Witness.
In reality, it appears that it is the testatrix who makes the declaration about the
points contained in the above described paragraph; however, as the witnesses,
together with the testatrix, have signed the said declaration, we are of the
opinion and so hold that the words above quoted of the testament constitute a
sufficient compliance with the requirements of section 1 of Act No. 2645 which
provides that:
The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of each other.
In regard to the other assignment of error, to wit, that each of the folios of the
said testament is not paged correlatively in letters "one." "two," "three," etc., but
only with the letters A, B, C, etc., we are of the opinion that this method of
indicating the paging of the testament is a compliance with the spirit of the law,
since either one of the two ways above-mentioned indicates the correlation of
the pages and serves to prevent the loss of any of them. It might be said that
the object of the law in requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that since all the pages of the
testament are signed at the margin by the testatrix and the witnesses, the
difficulty of forging the signatures in either case remains the same. In other
words the more or less degree of facility to imitate the writing of the letters A, B,
C, etc., does not make for the easiness to forge the signature. And as in the
present case there exists the guaranty of the authenticity of the testament,
consisting in the signatures on the left marging of the testament and the paging
thereof as declared in the attestation clause, the holding of this court in
Abangan vs. Abangan (40 Phil, 476), might as well be repeated:
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. 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 unnecesary,
useless, and frustrative of the testator's last will, must be disregarded.
In that case the testament was written on one page, and the attestation clause
on another. Neither one of these pages was numbered in any way; and it was
held:
69

In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator
and three witnesses and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses, it is not
necessary that both sheets be further signed on their margings by the
testator and the witnesses, or be paged.
This means that, according to the particular case, the omission of paging does
not necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters placed on
the upper part of the sheet, but if the paging should be place din the lower part,
would the testament be void for his sole reason? We believe not. The law also
provides that the testator and the witnesses must sign the left margin of each of
the sheets of the testament; but if they should sign on the right margin, would
this fact also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phil., 145):lvvph1n+
It is true that the statute says that the testator and the instrumental
witnesses shall sign their names on the left margin of each and every
page; and it is undeniable that the general doctrine is to the effect that
all statutory requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from cases
heretofore decided by this court
Still some details at times creep into legislative enactments which are
so trivial that it would be absurd to suppose that the Legislature could
have attached any decisive importance to them. The provision to the
effect that the signatures of the testator and witnesses shall be written
on the left margin of each page rather than on the right margin
seems to be of this character. So far as concerns the authentication of
the will, and of every part thereof, it can make no possible different
whether the names appear on the left or on the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558,
decided March 23, 1918, not reported), this court declared a will void
which was totally lacking in the signatures required to be written on its
several pages; and in the case of Re estate of Saguinsin (41 Phil., 875),
a will was likewise declared void which contained the necessary
signature on the margin of each left (folio), but not on the margin of
each page containing written matter.
We do not desire to intimate that the numbering in letters is a requisite of no
importance. But since its principal object is to give the correlation of the pages,
we hold that this object may be attained by writing "one." "two," "three," etc., well
as by writing A, B, C, etc. Following, therefore, the view maintained by this court
in the case of Abangan vs. Abangan, supra, as regards the appreciation of the
solemnities of a testament, we decide that the judgment appealed from must be,
as is hereby, affirmed with costs against the appellant. So ordered.

In re will of Antonio Vergel de Dios, deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
Jesus Ocampo, Reyes & Imzon, Camus & Delgado and Gibbs & McDonough
for appellants.
Eusebio Orense & Antonio M. Opisso for appellees.
ROMUALDEZ, J .:
The question in this case is as to the validity of the document Exhibit A as a will,
which was propounded by Ramon J. Fernandez for probate, and contested by
Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court
of First Instance of Manila having denied its probate.
The applicant takes this appeal, assigning error to the action of the lower court
in holding the attestation fatally defective and in not finding Act No. 2645 void.
The defects attributed to the will by the contestants are as follows, to wit:
(a) It was not sufficiently proven that the testator knew the contents of
the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the testator, or of
each other, nor with knowledge on the part of the testator that they were
signing his will.
70

(f ) The witnesses did not sign the attestation clause before the death of
the testator.
(g) This clause was written after the execution of the dispositive part of
the will and was attached to the will after the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are not
authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to
the testator, the latter's mind was perfectly sane and he understood it: that he
signed all the pages of the will proper, although he did not sign the page
containing the attestation clause; that while he did not personally call the
witnesses, yet the latter were invited by Attorney Lopez Lizo to act as such in
his presence. The law does not require that the testator precisely be the person
to request the witnesses to attest his will. It was also sufficiently established in
the record, beside being stated in the attestation clause, that the testator signed
the will in the presence of the three witnesses and that the latter, in turn, signed
it in the presence of the testator and of each other, the testator knowing that the
witnesses were signing his will; that the witnesses signed the attestation clause
before the death of the testator; that this clause, with the names of the
witnesses in blank, was prepared before the testator signed the will, and that the
sheet containing said clause, just as those of the will proper, was a loose sheet,
and that all the four sheets of which the will Exhibit A was actually composed
were kept together and are the very ones presented in this case; and finally, that
the signatures of the testator on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as those
mentioned by the opponents, and it having been proven that the testator
executed said will in a language known by him and consciously, freely and
spontaneously, it would seen unnecessary to go further, and the matter might
be brought to a close right here, by holding the will in question valid and
allowable to probate, were it not for the fact that the trial court and the
opponents questioned the sufficiency and validity of the attestation clause
because the sheet on which it is written is not numbered, and it is not stated
there that the testator signed on the margin of each sheet of the will in the
presence of the three witnesses, or that the latter signed it is the presence of the
testator and of each other, and specially because said attestation clause is not
signed by the testator either at the margin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true that
it does not appeal on the upper part of the sheet, but it does not appear in its
text, the pertinent part of which is copied hereinafter, with the words, having
reference to the number of sheets of the will, underscored, including the page
number of the attestation:
* * * We certify that the foregoing document written in Spanish, a
language known by the testator Antonino Vergel de Dios, consisting
of three sheet actually used, correlatively enumerated, besides this
sheet . . . .
If, as stated in this clause, the foregoing document consists of three sheets,
besides that of the clause itself, which is in singular, it is clear that such a sheet
of the attestation clause is the fourth and that the will, including said sheet, has
four sheets. This description contained in the clause in question constitutes
substantial compliance with the requirements prescribed by the law regarding
the paging. So it was held by this Court in the case of Abangan vs. Abangan (40
Phil., 476), where the sheet containing the attestation, as well as the preceding
one, was also not paged. Furthermore the law, as we shall see later on, does
not require that the sheet containing nothing but the attestation clause, wholly or
in part, be numbered or paged. Consequently this lack of paging on the
attestation sheet does not take anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated that the
testator signed on the margin of each sheet of the will, in the presence of the
witnesses and the latter in the presence of each other, let us see what is said in
said clause on this point, and to this end its pertinent part is hereinafter
transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the aforesaid will in
our presence and we at his request did the same in his presence and in
that of each other as witnesses to the will, and lastly, the testator, as
well as we, as witnesses, signed in the same manner on the left margin
of each sheet. (Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant case mean,
and it in fact means nothing, but that the testator and the witnesses signed on
the left margin of each sheet of the will "in the same manner" in which they
signed at the bottom thereof, that is, the testator in the presence of the
witnesses and the latter in the presence of the testator and of each other. This
phrase in the same manner cannot, in view of the context of the pertinent part,
refer to another thing, and was used here as a suppletory phrase to include
everything and avoid the repetition of a long and difficult one, such as what is
meant by it. The same section 618 of the Code of Civil Procedure, in order to
avoid the repetition of the same long phrase about the testator having signed in
the presence of the witnesses and the latter in the presence of each other,
71

resorts to a similar expression in the second paragraph and says, "as
aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet
containing the attestation clause, this point was already decided in the above
cited case of Abangan vs. Abangan, where this court held that:
The testator's signature is not necessary in the attestation clause
because this, as its name implies, appertains only to the witnesses and
not to the testator.
In that case of Abangan vs. Abangan it was held that the signature of the
testator is not necessary in the attestation clause, but the theory is not
announced that such a clause is unnecessary to the validity to the will.
For this reason such doctrine does not annul the judgment in the case of Uy
Coque vs. Navas L. Sioca (43 Phil., 405), where in effect the doctrine, among
others, was laid down that the attestation clause is necessary to the validity of
the will. One of the points on which greatest stress was laid in that case Uy
Coque is that the requirements of the law regarding the number of the pages
used, the signing of the will and of each of its pages by the testator in the
presence of three witnesses, and the attestation and signing of the will and of
each of its pages by the witnesses in the presence of each other cannot be
proven aliunde but by the attestation clause itself which must express the
complaince of the will with such requirements. But it was not held in that case of
Uy Coque that the signature of the testator was necessary in the attestation
clause, nor was such point discussed there, which was the point at issue in the
case of Abangan vs. Abangan, supra.
The appellees, however, argue that such clause in the case of Abangan vs.
Abangan begins at the bottom and on the same sheet in which the testamentary
provision terminated, that is to say, the will properly speaking. Even then if it is
intended to commit misrepresentation or fraud, which are the things that with the
requirements of the law for the making and attesting of wills it is intended to
avoid, it is just the same that the clause; as in the case of Abangan vs.
Abangan, begins at the bottom of the will properly speaking, as, like the case
before us, it is wholly contained in a separate sheet. The fact is that this
separate sheet, containing the attestation clause wholly or in part, is not signed
any place by the testator in the case of Abangan vs. Abangan, as it is not in the
present case.
Section 618 of the code of Civil Procedure, as amended by Act No. 2645,
contains three paragraphs, of which the first enumerates in general terms the
requirements to be met by a will executed after said Code took effect, to wit, that
the language or dialect in which it is written be known by the testator, that it be
signed by the latter or by another person in the name of the testator by his
express direction and in his presence, and that it be attested and signed by
three or more credible witnesses in the presence of the testator and of each
other.
These general rules are amplified in the next two paragraphs as to the special
requirements for the execution of the will by the testator and the signing thereof
by the witnesses, with which the second paragraph of the section deals, and as
to the attestation clause treated in the third and last paragraph of said section
618.
For this reason the second paragraph of this section 618 says:
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, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will properly
speaking, without any reference whatsoever to the attestation clause not treated
in this second paragraph. It is in this second paragraph which deals only with
the will (without including the attestation clause), that the signature or name of
the testator and those of the witnesses are mentioned as necessary on the left
margin of each and everyone of the sheets of the will (not of the attestation
clause), as well as the paging of said sheet (of the will, and not of the attestation
clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary
in the attestation clause? Let us see the last paragraph of this section 618 of the
Code which already deals with the requirements for the attestation clause. This
last paragraph reads thus:
The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and
every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the
latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
As may be seen this last paragraph refers to the contents of the text of the
attestation, not the requirements or signatures thereof outside of its text. It does
72

not require that the attestation be signed by the testator or that the page or
sheet containing it be numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a complement,
without which it cannot be probate and with which only not aliunde (Uy
Coque vs. Navas L. Sioca , supra) may the requirements to be stated in
its text be proven. The attestation clause must be prepared and signed,
as in the instant case, on the same occasion on which the will is
prepared and signed, in such a way that the possibility of fraud, deceit
or suppression of the will or the attestation clause be reduced to a
minimum; which possibility always exists, as experience shows, in spite
of the many precautions taken by the legislator to insure the true and
free expression of one's last will.
Second. That the will is distinct and different from the attestation,
although both are necessary to the validity of the will, similar, in our
opinion, to a document which is not public so long as it is not
acknowledged before a notary, the document being a distinct and
different thing from the acknowledgment, each of which must comply
with different requisites, among which is the signature of the maker
which is necessary in the document but not in the acknowledgment and
both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in
the second paragraph of section 618 of the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance
with the requirements prescribed for the will.
In the case at bar the attestation clause in question states that the requirements
prescribed for the will were complied with, and this is enough for it, as such
attestation clause, to be held as meeting the requirements prescribed by the law
for it.
The fact that in said clause the signature of the testator does not appear does
not affect its validity, for, as above stated, the law does not require that it be
signed by the testator.
We find no merit in the assignment of error raising the question as to the validity
of Act No. 2645, which is valid. For the purposes of this decision, it is not
necessary to reason out this conclusion, it being sufficient for the adjudication of
this case to hold the first error assigned by the appellants to have been
demonstrated.
The foregoing conclusions lead us to hold, as we do here by hold, that the
documents Exhibit A, as the last will and testament of the deceased Antonio
Vergel de Dios, meets all the requirements prescribed by the low now in force
and therefore it must be allowed to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court
proceed with the probate of the will Exhibit A in accordance with law, without
express pronouncement as to costs. So ordered.
Guerrero v. Bihis
521 SCRA 394
FACTS:
Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and
respondent Resurreccion A. Bihis, died. Guerrero filed for probate in the RTC
QC. Respondent Bihis opposed her elder sisters petition on the following
grounds: the will was not executed and attested as required by law; its
attestation clause and acknowledgment did not comply with the requirements of
the law; the signature of the testatrix was procured by fraud and petitioner and
her children procured the will through undue and improper pressure and
influence. Petitioner Guerrero was appointes special administratrix. Respondent
opposed petitioners appointment but subsequently withdrew her opposition.
The trial court denied the probate of the will ruling that Article 806 of the Civil
Code was not complied with because the will was acknowledged by the
testatrix and the witnesses at the testatrixs residence at No. 40 Kanlaon Street,
Quezon City before Atty. Macario O. Directo who was a commissioned notary
public for and in Caloocan City.
ISSUE:
Did the will acknowledged by the testatrix and the instrumental witnesses
before a notary public acting outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code?
HELD:
73

No. One of the formalities required by law in connection with the execution of a
notarial will is that it must be acknowledged before a notary public by the
testator and the witnesses. 6 This formal requirement is one of the
indispensable requisites for the validity of a will. 7 In other words, a notarial will
that is not acknowledged before a notary public by the testator and the
instrumental witnesses is void and cannot be accepted for probate.
The Notarial law provides: SECTION 240.Territorial jurisdiction. The
jurisdiction of a notary public in a province shall be co-extensive with the
province. The jurisdiction of a notary public in the City of Manila shall be co-
extensive with said city. No notary shall possess authority to do any notarial act
beyond the limits of his jurisdiction.
The compulsory language of Article 806 of the Civil Code was not complied with
and the interdiction of Article 240 of the Notarial Law was breached. Ineluctably,
the acts of the testatrix, her witnesses and Atty. Directo were all completely
void.




G.R. No. 157451 December 16, 2005
LETICIA VALMONTE ORTEGA, Petitioner,
vs.
JOSEFINA C. VALMONTE, Respondent.
D E C I S I O N
PANGANIBAN, J .:
The law favors the probate of a will. Upon those who oppose it rests the burden
of showing why it should not be allowed. In the present case, petitioner has
failed to discharge this burden satisfactorily. For this reason, the Court cannot
attribute any reversible error on the part of the appellate tribunal that allowed the
probate of the will.
The Case
Before the Court is a Petition for Review
1
under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision
2
and the
March 7, 2003 Resolution
3
of the Court of Appeals (CA) in CA-GR CV No.
44296. The assailed Decision disposed as follows:
"WHEREFORE, the appeal is GRANTED, and the Decision appealed from
is REVERSED and SET ASIDE. In its place judgment is rendered approving
and allowing probate to the said last will and testament of Placido Valmonte and
ordering the issuance of letters testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the court a quo for further and
concomitant proceedings."
4

The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
"x x x: Like so many others before him, Placido toiled and lived for a long time in
the United States until he finally reached retirement. In 1980, Placido finally
came home to stay in the Philippines, and he lived in the house and lot located
at #9200 Catmon St., San Antonio Village, Makati, which he owned in common
with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two
years after his arrival from the United States and at the age of 80 he wed
Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of
wedded bliss, Placido died on October 8, 1984 of a cause written down as COR
PULMONALE.
"Placido executed a notarial last will and testament written in English and
consisting of two (2) pages, and dated June 15, 1983 but acknowledged only on
August 9, 1983. The first page contains the entire testamentary dispositions and
a part of the attestation clause, and was signed at the end or bottom of that
page by the testator and on the left hand margin by the three instrumental
witnesses. The second page contains the continuation of the attestation clause
and the acknowledgment, and was signed by the witnesses at the end of the
attestation clause and again on the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF
THE LORD AMEN:
74

I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag
Valmonte, and a resident of 9200 Catmon Street, Makati, Metro Manila, 83
years of age and being of sound and disposing mind and memory, do hereby
declare this to be my last will and testament:
1. It is my will that I be buried in the Catholic Cemetery, under the auspices of
the Catholic Church in accordance with the rites and said Church and that a
suitable monument to be erected and provided my by executrix (wife) to
perpetuate my memory in the minds of my family and friends;
2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE,
one half (1/2) portion of the follow-described properties, which belongs to me as
[co-owner]:
a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in
Makati, Metro Manila, described and covered by TCT No. 123468 of the
Register of Deeds of Pasig, Metro-Manila registered jointly as co-owners with
my deceased sister (Ciriaca Valmonte), having share and share alike;
b. 2-storey building standing on the above-described property, made of strong
and mixed materials used as my residence and my wife and located at No. 9200
Catmon Street, Makati, Metro Manila also covered by Tax Declaration No. A-
025-00482, Makati, Metro-Manila, jointly in the name of my deceased sister,
Ciriaca Valmonte and myself as co-owners, share and share alike or equal co-
owners thereof;
3. All the rest, residue and remainder of my real and personal properties,
including my savings account bank book in USA which is in the possession of
my nephew, and all others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte;
4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last
will and testament, and it is my will that said executrix be exempt from filing a
bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June
1983 in Quezon City, Philippines.
"The allowance to probate of this will was opposed by Leticia on the grounds
that:
1. Petitioner failed to allege all assets of the testator, especially those found in
the USA;
2. Petitioner failed to state the names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant to law;
3. Will was not executed and attested as required by law and legal solemnities
and formalities were not complied with;
4. Testator was mentally incapable to make a will at the time of the alleged
execution he being in an advance sate of senility;
5. Will was executed under duress, or the influence of fear or threats;
6. Will was procured by undue and improper influence and pressure on the part
of the petitioner and/or her agents and/or assistants; and/or
7. Signature of testator was procured by fraud, or trick, and he did not intend
that the instrument should be his will at the time of affixing his signature thereto;
and she also opposed the appointment as Executrix of Josefina alleging her
want of understanding and integrity.
"At the hearing, the petitioner Josefina testified and called as witnesses the
notary public Atty. Floro Sarmiento who prepared and notarized the will, and the
instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and
Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary
Jane Ortega testified.
"According to Josefina after her marriage with the testator they lived in her
parents house at Salingcob, Bacnotan, La Union but they came to Manila every
month to get his $366.00 monthly pension and stayed at the said Makati
residence. There were times though when to shave off on expenses, the
testator would travel alone. And it was in one of his travels by his lonesome self
when the notarial will was made. The will was witnessed by the spouses
Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie
Collado. Josefina said she had no knowledge of the existence of the last will
and testament of her husband, but just serendipitously found it in his attache
case after his death. It was only then that she learned that the testator
bequeathed to her his properties and she was named the executrix in the said
will. To her estimate, the value of property both real and personal left by the
testator is worth more or less P100,000.00. Josefina declared too that the
75

testator never suffered mental infirmity because despite his old age he went
alone to the market which is two to three kilometers from their home cooked and
cleaned the kitchen and sometimes if she could not accompany him, even
traveled to Manila alone to claim his monthly pension. Josefina also asserts that
her husband was in good health and that he was hospitalized only because of a
cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the testators
will, testified that it was in the first week of June 1983 when the testator together
with the three witnesses of the will went to his house cum law office and
requested him to prepare his last will and testament. After the testator instructed
him on the terms and dispositions he wanted on the will, the notary public told
them to come back on June 15, 1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely hidden and locked in his drawer.
The testator and his witnesses returned on the appointed date but the notary
public was out of town so they were instructed by his wife to come back on
August 9, 1983, and which they did. Before the testator and his witnesses
signed the prepared will, the notary public explained to them each and every
term thereof in Ilocano, a dialect which the testator spoke and understood. He
likewise explained that though it appears that the will was signed by the testator
and his witnesses on June 15, 1983, the day when it should have been
executed had he not gone out of town, the formal execution was actually on
August 9, 1983. He reasoned that he no longer changed the typewritten date of
June 15, 1983 because he did not like the document to appear dirty. The notary
public also testified that to his observation the testator was physically and
mentally capable at the time he affixed his signature on the will.
"The attesting witnesses to the will corroborated the testimony of the notary
public, and testified that the testator went alone to the house of spouses
Eugenio and Feliza Gomez at GSIS Village, Quezon City and requested them to
accompany him to the house of Atty. Floro Sarmiento purposely for his intended
will; that after giving his instructions to Atty. Floro Sarmiento, they were told to
return on June 15, 1983; that they returned on June 15, 1983 for the execution
of the will but were asked to come back instead on August 9, 1983 because of
the absence of the notary public; that the testator executed the will in question in
their presence while he was of sound and disposing mind and that he was
strong and in good health; that the contents of the will was explained by the
notary public in the Ilocano and Tagalog dialect and that all of them as
witnesses attested and signed the will in the presence of the testator and of
each other. And that during the execution, the testators wife, Josefina was not
with them.
"The oppositor Leticia declared that Josefina should not inherit alone because
aside from her there are other children from the siblings of Placido who are just
as entitled to inherit from him. She attacked the mental capacity of the testator,
declaring that at the time of the execution of the notarial will the testator was
already 83 years old and was no longer of sound mind. She knew whereof she
spoke because in 1983 Placido lived in the Makati residence and asked Leticias
family to live with him and they took care of him. During that time, the testators
physical and mental condition showed deterioration, aberrations and senility.
This was corroborated by her daughter Mary Jane Ortega for whom Placido
took a fancy and wanted to marry.
"Sifting through the evidence, the court a quo held that [t]he evidence adduced,
reduces the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution
and attestation of the will; and
2. Mental incapacity of the testator at the time of the execution of the will as he
was then in an advanced state of senility
"It then found these grounds extant and proven, and accordingly disallowed
probate."
5

Ruling of the Court of Appeals
Reversing the trial court, the appellate court admitted the will of Placido
Valmonte to probate. The CA upheld the credibility of the notary public and the
subscribing witnesses who had acknowledged the due execution of the will.
Moreover, it held that the testator had testamentary capacity at the time of the
execution of the will. It added that his "sexual exhibitionism and unhygienic,
crude and impolite ways"
6
did not make him a person of unsound mind.
Hence, this Petition.
7

Issues
Petitioner raises the following issues for our consideration:
"I.
Whether or not the findings of the probate court are entitled to great respect.
76

"II.
Whether or not the signature of Placido Valmonte in the subject will was
procured by fraud or trickery, and that Placido Valmonte never intended that the
instrument should be his last will and testament.
"III.
Whether or not Placido Valmonte has testamentary capacity at the time he
allegedly executed the subject will."
8

In short, petitioner assails the CAs allowance of the probate of the will of
Placido Valmonte.
This Courts Ruling
The Petition has no merit.
Main Issue:
Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for
Review under Section 1 of Rule 45 of the Rules of Court. As an exception,
however, the evidence presented during the trial may be examined and the
factual matters resolved by this Court when, as in the instant case, the findings
of fact of the appellate court differ from those of the trial court.
9

The fact that public policy favors the probate of a will does not necessarily mean
that every will presented for probate should be allowed. The law lays down the
procedures and requisites that must be satisfied for the probate of a
will.
10
Verily, Article 839 of the Civil Code states the instances when a will may
be disallowed, as follows:
"Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will,
at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the part
of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto."
In the present case, petitioner assails the validity of Placido Valmontes will by
imputing fraud in its execution and challenging the testators state of mind at the
time.
Existence of Fraud in the
Execution of a Will
Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding it are
indicative of the existence of fraud. Particularly, she alleges that respondent,
who is the testators wife and sole beneficiary, conspired with the notary public
and the three attesting witnesses in deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the execution and the attestation of
the will.
Petitioner contends that it was "highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American
pensionado,"
11
thus casting doubt on the intention of respondent in seeking the
probate of the will. Moreover, it supposedly "defies human reason, logic and
common experience"
12
for an old man with a severe psychological condition to
have willingly signed a last will and testament.
We are not convinced. Fraud "is a trick, secret device, false statement, or
pretense, by which the subject of it is cheated. It may be of such character that
the testator is misled or deceived as to the nature or contents of the document
which he executes, or it may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain will which, but for
the fraud, he would not have made."
13

77

We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution.
14
The burden to show otherwise
shifts to the proponent of the will only upon a showing of credible evidence of
fraud.
15
Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the
due execution of a will.
16
That the testator was tricked into signing it was not
sufficiently established by the fact that he had instituted his wife, who was more
than fifty years his junior, as the sole beneficiary; and disregarded petitioner and
her family, who were the ones who had taken "the cudgels of taking care of [the
testator] in his twilight years."
17

Moreover, as correctly ruled by the appellate court, the conflict between the
dates appearing on the will does not invalidate the document, "because the law
does not even require that a [notarial] will x x x be executed and acknowledged
on the same occasion."
18
More important, the will must be subscribed by the
testator, as well as by three or more credible witnesses who must also attest to
it in the presence of the testator and of one another.
19
Furthermore, the testator
and the witnesses must acknowledge the will before a notary public.
20
In any
event, we agree with the CA that "the variance in the dates of the will as to its
supposed execution and attestation was satisfactorily and persuasively
explained by the notary public and the instrumental witnesses."
21

The pertinent transcript of stenographic notes taken on June 11, 1985,
November 25, 1985, October 13, 1986, and October 21, 1987 -- as quoted by
the CA -- are reproduced respectively as follows:
"Atty. Floro Sarmiento:
Q You typed this document exhibit C, specifying the date June 15 when the
testator and his witnesses were supposed to be in your office?
A Yes sir.
Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.
x x x x x x x x x
Q The document has been acknowledged on August 9, 1983 as per
acknowledgement appearing therein. Was this the actual date when the
document was acknowledged?
A Yes sir.
Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C?
A On that particular date when it was acknowledged, August 9, 1983.
Q Why did you not make the necessary correction on the date appearing on the
body of the document as well as the attestation clause?
A Because I do not like anymore to make some alterations so I put it in my own
handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp.
8-10)
Eugenio Gomez:
Q It appears on the first page Mr. Witness that it is dated June 15, 1983,
whereas in the acknowledgement it is dated August 9, 1983, will you look at this
document and tell us this discrepancy in the date?
A We went to Atty. Sarmiento together with Placido Valmonte and the two
witnesses; that was first week of June and Atty. Sarmiento told us to return on
the 15th of June but when we returned, Atty. Sarmiento was not there.
Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go
back?
A We returned on the 9th of August and there we signed.
Q This August 9, 1983 where you said it is there where you signed, who were
your companions?
A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp.
7-8)
Felisa Gomez on cross-examination:
78

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?
x x x x x x x x x
A The reason why we went there three times is that, the first week of June was
out first time. We went there to talk to Atty. Sarmiento and Placido Valmonte
about the last will and testament. After that what they have talked what will be
placed in the testament, what Atty. Sarmiento said was that he will go back on
the 15th of June. When we returned on June 15, Atty. Sarmiento was not there
so we were not able to sign it, the will. That is why, for the third time we went
there on August 9 and that was the time we affixed our signature. (tsn, October
13, 1986, pp. 4-6)
Josie Collado:
Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what
transpired?
A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.
Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?
A Yes, Sir.
Q For what purpose?
A Our purpose is just to sign the will.
Q Were you able to sign the will you mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)"
22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the
commission of a fraud. There was no showing that the witnesses of the
proponent stood to receive any benefit from the allowance of the will. The
testimonies of the three subscribing witnesses and the notary are credible
evidence of its due execution.
23
Their testimony favoring it and the finding that it
was executed in accordance with the formalities required by law should be
affirmed, absent any showing of ill motives.
24

Capacity to Make a Will
In determining the capacity of the testator to make a will, the Civil Code gives
the following guidelines:
"Article 798. In order to make a will it is essential that the testator be of sound
mind at the time of its execution.
"Article 799. 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 shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to
know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act.
"Article 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
"The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the will;
but if the testator, one month, or less, before making his will was publicly known
to be insane, the person who maintains the validity of the will must prove that
the testator made it during a lucid interval."
According to Article 799, the three things that the testator must have the ability
to know to be considered of sound mind are as follows: (1) the nature of the
estate to be disposed of, (2) the proper objects of the testators bounty, and (3)
the character of the testamentary act. Applying this test to the present case, we
find that the appellate court was correct in holding that Placido had testamentary
capacity at the time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and
even their locations. As regards the proper objects of his bounty, it was
sufficient that he identified his wife as sole beneficiary. As we have stated
earlier, the omission of some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution, intent in its disposition
becomes irrelevant.
Worth reiterating in determining soundness of mind is Alsua-Betts v.
CA,
25
which held thus:
79

"Between the highest degree of soundness of mind and memory which
unquestionably carries with it full testamentary capacity, and that degrees of
mental aberration generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from disease of body, or from
age, will not render a person incapable of making a will; a weak or feebleminded
person may make a valid will, provided he has understanding and memory
sufficient to enable him to know what he is about to do and how or to whom he
is disposing of his property. To constitute a sound and disposing mind, it is not
necessary that the mind be unbroken or unimpaired or unshattered by disease
or otherwise. It has been held that testamentary incapacity does not necessarily
require that a person shall actually be insane or of unsound mind."
26

WHEREFORE, the Petition is DENIED, and the assailed Decision and
Resolution of the Court of Appeals areAFFIRMED. Costs against petitioner.
SO ORDERED.


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.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

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 Paares 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
80

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 will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re 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.


G.R. No. L-26808 May 23, 1969
REV. FATHER LUCIO V. GARCIA, petitioner,
vs.
HON. CONRADO M. VASQUEZ, respondent.
R E S O L U T I O N
*

FERNANDO, J .:
This is a motion for the reconsideration of our decision of March 28, 1969, filed
by petitioner. In the opinion rendered in that case, we stated: "Petitioner should
have been aware that there is no escape from the payment of the corresponding
docket fee, otherwise, the Court is not called upon to act on a complaint or
petition. Nor does it suffice to vary the rule simply because there is only one
decedent whose estate is thus to be disposed of by will that must first be
probated. It is not farfetched or implausible that a decedent could have left
various wills. Under such circumstances, there is nothing inherently
objectionable in thus exacting the payment of a docket fee, every time a will is
sought to be probated. Petitioner here could have sought the probate of the will
presented by him in the same proceeding. He did not; he filed instead a
separate action."
While not disputing the correctness of the above principle announced, petitioner,
in this motion for reconsideration, would assert that he did not file a separate
action "but instead elected to file the probate of the decedent's 1956 Will in the
same Sp. Proc. 62618, then pending before the respondent Court." Petitioner's
statement of fact is correct. Under the circumstances then, while the doctrine to
the effect that a court of justice is not called upon to act on a complaint will
81

petition in the absence of a payment of the corresponding docket fee every time
a will is sought to be probated must be considered as subsisting, it finds no
application to the present case, as petitioner did not file a separate action but
instead sought to have the other will probated in the same special proceedings
then pending before respondent Court. He is therefore entitled to have our
decision reconsidered.
WHEREFORE, the decision of March 28, 1969 is set aside and the petition for
certiorari granted, with petitioner being thus entitled to the refund of the second
docket fee of P940.00 paid under Receipt No. J-1459986 issued on December
2, 1965, and the order of respondent Court of November 6, 1965 ordering such
payment of the second docket fee annulled. Without pronouncement as to
costs.lawphi1.et

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.
5
Petitioner, 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.
82

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 was only of "counting fingers at three (3) feet"
by reason of the glaucoma which he had been suffering from for several years
and even prior to his first consultation with an eye specialist on
14 December 1977.
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.
83

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 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. 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.

84


WITNESSES TO WILLS
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.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

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 Paares 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.
85

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 will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re 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.

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
86

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 the expenses, debts and
legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the following
grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by
law;
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.
87

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 arguments adduced
in the petition, as well as the Comment
8
of private respondent thereon, We
denied the petition by Resolution on November 26, 1973,
9
the question raised
being factual and for insufficient showing that the findings of fact by respondent
Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner 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.
88

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
recognized exceptions.
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
89

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 and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that
anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself or
by the 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 thecompetency 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. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the
Supreme Court held that "Section 620 of the same Code of Civil Procedure
provides that any person of sound mind, and of the age of eighteen years or
more, and not blind, deaf, or dumb and able to read and write, may be a witness
to the execution of a will. This same provision is reproduced in our New Civil
Code of 1950, under Art. 820. The relation of employer and employee, or being
90

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 subscribing the will, the competency being
determined as 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 of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-
22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a
witness is one thing, and it is another to be a credible witness, so credible that
the Court must accept what he says. Trial courts may allow a person to testify
as a witness upon a given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In fine, We state the
rule that the instrumental witnesses in Order to be competent must be shown to
have the 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
91

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 to witness the making of her will, as
well as the testimony of Maria Gimpaya that she was called by her husband
Celso Gimpaya to proceed to Isabel 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
92

appears to be in typewritten form while the names, residence tax certificate
numbers, dates and places of issuance of said certificates pertaining to the
three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this
coincides with Atty. 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 photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does not
require a photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken
which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya.
" Further, the respondent Court correctly held: "The trial court gave undue
importance to the picture takings, jumping therefrom to the conclusion that the
will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by
Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were
93

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 appointment
only with Matilde Orobia to witness the signing of her will, then it becomes the
duty of the appellate court to reverse findings of fact of the trial court in the
exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We agree with the petitioner that among
the exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion;
(4) when the 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
94

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 facts; (5) when the findings of fact are conflicting, (6)
when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same is contrary to the admissions of both appellant and appellee.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola
Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila,
G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall
within any of the exceptions enumerated above. We likewise hold that the
findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial
evidence. We find no abuse of discretion and We discern no misapprehension
of facts. The respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its findings of
fact are binding and conclusive and should not be disturbed by this Tribunal and
it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions
we have heretofore made in respect ' to petitioner's previous assignments of
error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us
as We find the respondent Court acted properly and correctly and has not
departed from the accepted and usual course of judicial proceedings as to call
for the exercise of the power of supervision by the Supreme Court, and as We
find that the Court of Appeals did not err in reversing the decision of the trial
court and admitting to probate Exhibit "F", the last will and testament of the
deceased Isabel Gabriel.
We rule that the respondent 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
95

good. The lawyer told her that this cannot be done because the will was already
signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing
was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies
of the witnesses for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the three instrumental
witnesses who constitute the best evidence of the will making have testified in
favor of the probate of the will. So has the lawyer who prepared it, one learned
in the law and long in the practice thereof, who thereafter notarized it. All of
them are disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less
the petitioner, that they were not genuine. In the last and final analysis, the
herein conflict is factual and we go back to the rule that the Supreme Court
cannot review and revise the findings of facts of the respondent Court of
Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.


[G.R. No. L-8774. November 26, 1956.]
In the matter of the testate estate of the deceased JUANA JUAN VDA. DE
MOLO. EMILIANA MOLO-PECKSON and PILAR PEREZ-
NABLE, Petitioners-Appellees, vs. ENRIQUE TANCHUCO, FAUSTINO
GOMEZ, ET AL., Oppositors-Appellants.

D E C I S I O N
MONTEMAYOR, J .:
Mariano Molo and Juana Juan was a couple possessed of much worldly wealth,
but unfortunately, not blessed with children. To fill the void in their marital life,
they took into their home and custody two baby girls, raising them from infancy,
treating them as their own daughters, sending them to school, and later to the
best and exclusive centers of higher learning, until they both graduated, one in
pharmacy, and the other in law. These two fortunate girls, now grown up women
and married, are Emiliana Perez-Molo-Peckson, a niece of Juana, and Pilar
Perez-Nable a half sister of Emiliana.
Mariano Molo died in January, 1941, and by will bequeathed all his estate to his
wife. Juana, his widow, died on May 28, 1950, leaving no forced heirs but only
collateral, children and grandchildren of her sisters. She left considerable
property worth around a million pesos or more, and to dispose of the same, she
was supposed to have executed on May 11, 1948, about two years before her
death, a document purporting to be her last will and testament, wherein she
bequeathed the bulk of her property to her two foster children, Emiliana and
Pilar. These two foster daughters, as Petitioners, presented the document for
probate in the Court of First Instance of Rizal. The other relatives, such as
Enrique Tanchuco, only son of Juanas deceased sister Modesta, and his two
children, Ester, and Gloria, both surnamed Tanchuco, and Faustino Gomez and
Fortunata Gomez, the only surviving grandchildren of another deceased sister,
named Francisca, filed opposition to the probate of the will on the ground that
the instrument in question was not the last will and testament of Juana; chan
roblesvirtualawlibrarythat the same was not executed and attested in
accordance with law; chan roblesvirtualawlibrarythat the said supposed will was
secured through undue pressure and influence on the part of the beneficiaries
therein; chan roblesvirtualawlibrarythat the signature of the testatrix was
secured by fraud and that she did not intend the instrument to be her last
will; chan roblesvirtualawlibraryand that at the time the instrument was
executed, the testatrix Juana was not of sound and disposing mind.
Because of the value of the property involved, as well as the fact that the bulk of
said property was being left to Emiliana and Pilar, ignoring and practically
disinheriting the other relatives whose blood ties with the testatrix were just as
close, if not closer, the will, marked Exhibit A at the hearing, was hotly contested
and considerable evidence, oral and documentary, was introduced by both
parties. After hearing, Judge Bienvenido A. Tan, presiding over the trial court, in
a well considered decision declared the document Exhibit A to be the last will
and testament of Juana Juan, and admitted the same for probate; chan
roblesvirtualawlibraryand following the provisions of the will, he appointed
Emiliana and Pilar executrices without bond. Failing to obtain a reconsideration
of this decision, the Oppositors appealed to the Court of Appeals about the
beginning of the year 1951.
Ordinarily, because of the value of the property involved in the will, which was
many times more than P50,000, the appeal should have been brought directly to
this Tribunal. However, shortly, after the execution of the instrument admitted to
probate as a will, the testatrix executed a document purporting to be a deed of
donation inter vivos, donating the great bulk of her entire property, with the
exception of about P16,000 worth, to the same beneficiaries in the will, namely,
Emiliana and Pilar. If this deed of donation is valid, then the will disposes of
property valued only at about P16,000; chan roblesvirtualawlibraryhence, the
96

appeal to the Court of Appeals instead of the Supreme Court. In justice to
the Oppositors, it should be stated that, at the same time that they opposed the
probate of the will in the probate court, they also expressed their intention to
contest the validity of the allege donation inter vivos, either in the administration
proceedings or in a proper separate case. The appeal, for one reason or
another, remained in the Court of Appeals for sometime, and only by its
resolution of July 7, 1954, was the case certified to us on the ground that,
inasmuch as the validity of the supposed donation inter vivos was being
impugned and repudiated by the Oppositors of the will, and inasmuch as the will
itself covered property valued well in excess of P50,000, the appeal should be
determined by the Supreme Court.
We have carefully gone over the evidence of the record, and we are convinced
that the great preponderance thereof is in favor of the probate of the will. Not
only this, but we realize that the credibility of witnesses is very much involved in
the determination of this case, the testimony of those for the Petitioners being
diametrically opposed to and utterly conflicting with that of the witnesses for
the Oppositors. His Honor, the trial judge had the opportunity and was in a
position to gauge said credibility and he evidently found the witnesses for
the Petitioners more entitled to credence, and their testimony more reasonable.
We find no reason for disturbing said finding of the probate court. We quote with
approval a portion of the decision of Judge Tan, reading as
follows:chanroblesvirtuallawlibrary
From the evidence presented in this case, both oral and documentary, it was
proved to the full satisfaction of this Court that the deceased freely and
voluntarily executed Exhibit A, her last will and testament, in the presence of
her three attesting witnesses that at the time of the execution of the said will, the
deceased was of sound mind and in good health and was fully conscious of all
her acts as may be seen in Exhibits D, D-1, D-2, D-3, and D-4, and also
as was proven by the testimony of the two attesting witnesses, Petrona P.
Navarro and Dr. Cleofas Canicosa; chan roblesvirtualawlibrarythat said will was
signed in the presence of the three attesting witnesses, who, likewise, signed in
the presence of the testatrix and in the presence of each other; chan
roblesvirtualawlibrarythat after the execution of said will or after the signing of
the same, the deceased Juana Juan Vda. de Molo took it with her and kept it in
her possession and after her death, the said will was presented in court for
probate.
While the written opposition to the probate of said will consists of a litany of
supposed abuses, force and undue influence exercised on the testatrix, yet the
evidence shows that these supposed abuses, force and undue influence consist
only of failure on the part of the deceased to invite theOppositors in all the
parties held in her house through the alleged influence of Mrs. Nable, of paying
more attention, care, and extending more kindness to the Petitioners than to
theOppositors in spite of the close blood relationship existing between the
testatrix and theOppositors. The Oppositors also tried to prove the existence of
another will which, according to them, was read to the Oppositor Enrique
Tanchuco three days before the departure of the testatrix for the United States,
though no evidence whatsoever was presented as to what happened to the
supposed will, where it is now, in whose hands it is, or in whose possession it
could be found. The Oppositors also tried to prove that during the illness of the
testatrix in 1948 they were unable to visit her because of the influence of
Emiliana Molo-Peckson, who told them that they could not visit the testatrix
because of the advice of the doctor. This testimony of theOppositors was
satisfactorily contradicted by the testimony of Mrs. Emiliana Molo-Peckson who
denied that the testatrix was sick in the year 1948 and by means of photographs
which show that during the said period of time, which the Oppositors alleged to
be the date when Mrs. Juana Juan Vda. de Molo was sick, the latter attended
several affairs, such as sponsoring the reconstruction of the Antipolo Church,
attending a party given in the house of Gen. Aguinaldo in Kawit, Cavite, and
other social gatherings.
Neither do we find anything unusual or extraordinary in the testatrix giving
practically all her property to her foster daughters, to the exclusion of her other
relatives. The two beneficiaries, as already stated, were taken in and raised by
her and her husband, Mariano, when they were mere babies. Naturally, they
became very much attached to and came to love said two children, specially
since they had none of their own. They sent them to good, even expensive
schools like the Santa Teresa, Santa Escolastica, and the University of the
Philippines, and otherwise lavished their affection and their wealth on their two
protegees. Little wonder then that Juana in making her will made Emiliana and
Pilar practically her exclusive beneficiaries, specially since, So we understand,
when these two girls had grown up to womanhood, and been highly educated,
they helped their foster parents in the administration of their extensive
properties, and later took good, kind, and tender care of them in their old age.
We repeat that it was neither unusual nor extraordinary that the testatrix, with no
forced heirs, should have made her two foster daughters, the beneficiaries in
her will, to the exclusion of her blood relatives. Said this Court in a similar case
Pecson vs. Coronel, 45 Phil. 220:chanroblesvirtuallawlibrary
The Appellants emphasize the fact that family ties in this country are very
strongly knit and that the exclusion of relatives from ones estate is an
exceptional case. It is true that the ties of relationship in the Philippines are very
strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of ones estate by will when there
are no forced heirs is rendered sacred by the Civil Code in force in the
Philippines since 1889. It is so provided in the first paragraph of article 763 in
the following terms:chanroblesvirtuallawlibrary
Any person who has no forced heirs may dispose by will of all his property or
any part of it in favor of any person qualified to acquire it.
97

Even ignoring the precedents of this legal precept, the Code embodying it has
been in force in the Philippines for more than a quarter of a century, and for this
reason it is not tenable to say that the exercise of the liberty thereby granted is
necessarily exceptional, where it is not shown that the inhabitants of this country
whose customs must have been taken into consideration by the legislator in
adopting this legal precept, are averse to such a liberty.
Oppositors-Appellants in their printed memorandum contend that under Section
618 of Act 190, the Old Code of Civil Procedure, which requires that a will
should be attested or subscribed by three or more credible witnesses, two of the
attesting witnesses to the will in question, namely, Miss Navarro and Miss
Canicosa, who were employed as pharmacist and salesgirl, respectively, in the
drugstore of Pilar Perez-Nable, one of beneficiaries in the will, may not be
considered credible witnesses for the reason that as such employees, they
would naturally testify in favor of their employer. We find the contention
untenable. Section 620 of the same Code of Civil Procedure provides that any
person of sound mind, and of the age of eighteen years or more, and not blind,
deaf, or dumb and able to read and write, may be a witness to the execution of
a will. This same provision is reproduced in our New Civil Code of 1950, under
Art. 820. The relation of employer and employee, or being a relative to the
beneficiary in a will, does not disqualify one to be a witness to a will. The main
qualification of a witness in the attestation of wills, if other qualifications as to
age, mental capacity and literacy are present, is that said witness must be
credible, that is to say, his testimony may be entitled to credence. There is a
long line of authorities on this point, a few of which we may
cite:chanroblesvirtuallawlibrary
A credible witness is one who is not disqualified to testify by mental incapacity,
crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A. 619,
226 Pa. 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. (Ibid. p. 341). Expression credible witness in relation to attestation of
wills means competent witness; chan roblesvirtualawlibrarythat is, one
competent under the law to testify to fact of execution of will. Vernons Ann. Civ.
St. art. 8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2d
888, 889. (Ibid. p. 842)
The term credible, used in the statute of wills requiring that a will shall be
attested by two credible witnesses, means competent; chan
roblesvirtualawlibrarywitnesses who, at the time of attesting the will, are legally
competent to testify, in a court of justice, to the facts attested by subscribing the
will, the competency being determined as of the date of the execution of the will
and not of the time it is offered for probate. Smith vs. Goodell, 101 N.E. 255,
256, 258 Ill. 145. (Ibid.)
Credible witnesses, as used in the statute relating to wills, means competent
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 III. 42. (Ibid. p.
343)
This Tribunal itself held in the case of Vda. de Roxas vs. Roxas, 48 Off. Gaz.,
2177, that the law does not bar relatives, either of the testator or of the heirs or
legatees, from acting as attesting witnesses to a will.
In view of the foregoing, finding no reversible error in the decision appealed
from the same is hereby affirmed. No costs.


HOLOGRAPHIC WILLS
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO
LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS,
1
GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J .:
The sole issue in this case is whether or not the alleged holographic will of one
Melecio Labrador is dated, as provided for in Article 810
2
of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
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residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition
for the probate docketed as Special Proceeding No. 922-I of the alleged
holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator
Melecio executed a Deed of Absolute Sale, selling, transferring and conveying
in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of
fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier
however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five
Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I,
being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial
court rendered a joint decision dated February 28, 1985, allowing the probate of
the holographic will and declaring null and void the Deed of Absolute sale. The
court a quo had also directed the respondents (the defendants in Civil Case No.
934-I) to reimburse to the petitioners the sum of P5,000.00 representing the
redemption price for the property paid by the plaintiff-petitioner Sagrado with
legal interest thereon from December 20, 1976, when it was paid to vendee a
retro.
Respondents appealed the joint decision to the Court of Appeals, which on
March 10, 1988 modified said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated and reversing the order of
reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision
was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence,
this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL
OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE
ORDER OF THE LOWER COURT DIRECTING THE
REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as
Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at
the South is the property and assignment share of ENRICA
LABRADOR, also their sister, and the boundary in the West is
the sea, known as the SEA as it is, and the boundary on the
NORTH is assignment belonging to CRISTOBAL LABRADOR,
who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is
the right time for me to partition the fishponds which were and
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had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering to
each and everyone of them the said portion and assignment so
that there shall not be any cause of troubles or differences
among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and
it is this that should be followed and complied with in order that
any differences or troubles may be forestalled and nothing will
happen along these troubles among my children, and that they
will be in good relations among themselves, brothers and
sisters;
And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other kind
of bamboo by name of Bayog, it is their right to get if they so
need, in order that there shall be nothing that anyone of them
shall complain against the other, and against anyone of the
brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of
the two mothers of my children, there shall be equal portion of
each share among themselves, and or to be benefitted with all
those property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing
(WILL) which I am here hereof manifesting of the truth and of
the fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be
complied with, by all the brothers and sisters, the children of
their two mothers JULIANA QUINTERO PILARISA and
CASIANA AQUINO VILLANUEVA Your father who made this
writing (WILL), and he is, MELECIO LABRADOR y RALUTIN
(p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance
with Article 810. It is worthy of note to quote the first paragraph of the second
page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed
in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator. These requirements are present in the
subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence, the
will is more of an "agreement" between the testator and the beneficiaries thereof
to the prejudice of other compulsory heirs like the respondents. This was thus a
failure to comply with Article 783 which defines a will as "an act whereby a
person is permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of
the execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was executing
was a will. The act of partitioning and the declaration that such partitioning as
the testator's instruction or decision to be followed reveal that Melecio Labrador
was fully aware of the nature of the estate property to be disposed of and of the
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character of the testamentary act as a means to control the disposition of his
estate.
Anent the second issue of finding the reimbursement of the P5,000 representing
the redemption price as erroneous, respondent court's conclusion is incorrect.
When private respondents sold the property (fishpond) with right to repurchase
to Navat for P5,000, they were actually selling property belonging to another
and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately
regain possession of the property for its disposition in accordance with the will.
Petitioners therefore deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March
10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.


De Jesus v. De Jesus
December 31, 1984
G.R. No. , ,
vs.
, .
, 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
aliathat 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
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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 his holographic
Win the "year, month, and day of its execution," the present Civil Code omitted
the phrase A


October 8, 1932
G.R. No. 36342
In re Will of Francisco Varela Calderon, deceased.
FRANCISCO CARMELO VARELA, petitioner-appellee,
vs.
MIGUEL VARELA CALDERON, ET AL., opponents-appellants
Araneta De Joya, Zaragoza and Araneta for appellants.
Eduardo Gutierrez Repide for appellee.
IMPERIAL, J .:
This is an appeal taken by Miguel Varela Calderon, Angel Varela Calderon,
Jesus Varela Calderon, Trinidad Varela Calderon, Paula Varela Calderon, Pilar
Varela Calderon and Maria Varela Calderon from the judgment rendered by the
Honorable Mariano A. Albert, Judge of the Court of First Instance of Manila,
ordering the allowance and probate of the document marked Exhibit B as the
last will and testament of the late Francisco Varela Calderon.
The deceased, a physician by profession, was a Filipino citizen resident of the
City of Manila where he owned real properties assessed at P188,017.81. He
traveled abroad for his health and temporarily resided in Hendaye-Plage,
France. Not feeling very well, but in the full enjoyment of his mental faculties, he
decided to make his last will and testament (Exhibit B), on April 14, 1930, in
Paris, France, with the assistance of attorneys F. de Roussy de Sales, Gething
C. Miller and Henri Gadd. Sometime later, that is on July 15, 1930, he died in
the Grand-Hotel de Leysin Sanatorium in Switzerland.
On September 20, 1930, the herein petitioner-appellee, Francisco Carmelo
Varela, filed a petition in the Court of First Instance of the City of Manila, praying
that said will be admitted to probate. Said petition was opposed by the
deceased's brother Jose Miguel, Angel, Jesus, Trinidad, Paula, Pilar and Maria,
surnamed Varela Calderon, although, later on, the first mentioned opponent
withdrew his opposition giving as his reason therefor that it was out of respect
for the testator's wishes because the will was executed in his own handwriting.
The grounds of the opposition are as follows: (a) That the will sought to be
probate was not holographic in character and did not comply with the requisites
prescribed by article 970 of the French Civil Code; (b) that the witnesses to the
will did not possess the qualifications required by article 980 of the French Civil
Code; (c) that for not having complied with the requisites prescribed by the
French law, said will is null and void; (d) that neither has it the character of an
open will, not having been executed in accordance with article 1001 of the
French Civil Code; and (e) that the provisions of article 1007 of the same Code
relative to the recording of wills were not complied with in connection with the
will in question.
The appellants assign the following errors alleged to have been committed by
the trial court:
1. The trial court erred in declaring that Exhibit B, purporting to be the last will
and testament of the deceased Francisco Varela Calderon, was a valid
holographic will made and executed, in accordance with the laws of the French
Republic.
2. The trial court, therefore, erred in allowing and admitting to probate said
document Exhibit B, as the last will and testament of the deceased Francisco
Varela Calderon.
In view of the nature of both assignments of error and of the arguments
advanced in their support, we shall discuss them jointly.
102

The will in question, Exhibit B, as translated into English reads as follows:
I. FRANCISCO VARELA CALDERON, Doctor in Medicine, bachelor, citizen of
the Philippine Islands and subject of the United States of America, borne and
domiciled at Manila, Philippine Islands, and actually residing temporarily at
Hendaye-Plage, France, I declare that the followings are my act of last wills and
my testament:
1. I revoke all testamentary dispositions made by myself before this day.
2. I desire that the inhumation of my body be made without any ceremony.
3. I give and bequeath to my children FRANCISCO CARMELO VARELA borne
at Madrid on the twenty fourth of November nineteen hundred five and to
CARMEN VARELA borne at Manila, Philippine Islands, on the fourth of October
nineteen hundred seven who live both actually with me, the totality of my
personal properties, real estates and mixed including those on which I could
have the power of disposition or designation whatsoever, by equal parts in all
properties, instituting them my residuary legatee.
4. I name for my testamentary executor, without bail, my son, FRANCISCO
CARMELO VARELA, to his default my daughter CARMEN VARELA to the
default of this one my brother MIGUEL VARELA CALDERON and to the default
of my brother, Mr. ANTONIO GUTIERREZ DEL CAMPO.
In witness whereof I have in this one my act of last wills and testament, written
dated and signed entirely by my hand, applied my signature and my seal at
Paris, this fourteenth of April nineteen hundred thirty.
(Sgd.) FRANCISCO VARELA CALDERON (L. S.)
(Sgd.) HENRI GADD
(Sgd.) TH. PEYROT
Signed, sealed, published and declared by the testator above mentioned,
FRANCISCO VARELA CALDERON, on the 14 April 1930, as being his act of
last wills and his testament in the presence of we, who at his request, in his
presence, and in the presence of one another, have to these presents applied
our signatures as witnesses:
(Sgd.) F. DE ROUSSY DE SALES,
39 rue la Boetie, Paris, France.
(Sgd.) GETHING C. MILLER,
39 rue la Boetie, Paris, France.
(Sgd.) HENRI GADD,
39 rue la Boetie, Paris, France.
Pour traduction certifiee conforme,
Manille, le 15 september 1930.
The original will was executed in the French language and had been written,
dated and signed by the testator with his own hand, with the exception of the
attestation clause which appears at the bottom of the document. This fact is
proved by the testimony of the appellee and his other witnesses, including the
depositions, and is admitted by the appellants.
The petition for the allowance and probate of said will is based on the provisions
of article 970 of the French Civil Code which considers as a holographic will that
which is made or executed, dated and signed by the testator in his own
handwriting without the necessity of any other formality, and on section 635 of
the Code of Civil Procedure in force in this jurisdiction which provides that a will
made out of the Philippine Islands in accordance with the laws in force in the
country in which it was made and which may be allowed and admitted to
probate therein, may, also be proved, allowed and recorded in the Philippine
Islands in the same manner and with the same effect as if executed in the latter
country. Both provisions of law literally copied from the English text, read as
follows:
(Article 970, French Civil Code)
A holographic will is not valid unless it is entirely written, dated, and signed by
the testator. No other formality is required.
(Article 635, Code of Civil Procedure)
Will made out of the Philippine Islands. A will made out of the Philippine
Islands which might be proved and allowed by the laws of the state or country in
which it was made, may be proved, allowed, and recorded in the Philippine
Islands, and shall have the same effect as if executed according to the laws of
these Islands.
103

As we have already said, it is an admitted fact that the will was written, dated
and signed by the deceased testator, for which reason, there is no doubt that it
had been made and executed in accordance with article 970 of the French Civil
Code were it not for the attestation clause which appears at the bottom of the
document.
The appellants contend that the addition of said of clause has entirely vitiated
the will, because it ceased to be a holographic will, neither does it possess the
requisites of a public or open will in accordance with the French law. The court
which originally took cognizance of the case decided that such circumstance
does not invalidate the will. We concur in said opinion and hold that a clause
drawn up in such manner is superfluous and does not affect in any way the
essential requisites prescribed for holographic wills by the French law, and,
consequently, it has not invalidated the will nor deprived it of its holographic
character. In reaching this conclusion, we base our opinion not only on the clear
and conclusive provisions of article 970 of the French Civil Code and on the
decisions of the French Court of Appeals cited in the appelee's brief, but
principally on the fact established in the depositions made by practicing
attorneys F. de Roussy de Sales, Gething C. Miller and Henri Gadd of Paris,
France, who emphatically declared that the will in question did not lose its
holographic character by the addition of the aforementioned attestation clause
and that it may be allowed to probate in conformity with the French laws under
which it had been made and executed.
In view of the foregoing, we believe it unnecessary to consider and pass upon
the other grounds invoked by the opposition consisting in the incapacity of the
three witnesses who signed at the end of the attestation clause and the absence
of the requisites prescribed by the French Civil Code for the execution of open
wills, inasmuch as the attorney for the appellee has conclusively proved that the
will in question is holographic, and we have so held and decided.
The order appealed from, being in conformity with the law, is hereby affirmed in
toto, with costs against the appellants. So ordered.



ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J .:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to
be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City,
being of sound and disposing mind and memory, do hereby declare thus to be
my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa
City. In accordance with the rights of said Church, and that my executrix
hereinafter named provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of
the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate the
same by his full signature.
104

ROSA's position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3,
197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau
of Investigation for examination. The NBI reported that the
handwriting, the signature, the insertions and/or additions and
the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent,
Natividad K. Kalaw. The only question is whether the win,
Exhibit 'C', should be admitted to probate although the
alterations and/or insertions or additions above-mentioned were
not authenticated by the full signature of the testatrix pursuant
to Art. 814 of the Civil Code. The petitioner contends that the
oppositors are estopped to assert the provision of Art. 814 on
the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is
untenable. The parties did not agree, nor was it impliedly
understood, that the oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of
the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to probate of Exhibit
"C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the
ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires
no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition for
Review on certiorari on the sole legal question of whether or not theoriginal
unaltered text after subsequent alterations and insertions were voided by the
Trial Court for lack of authentication by the full signature of the testatrix, should
be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by
the testator in a holographic Will litem not been noted under his signature, ... the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined.1 Manresa gave an Identical
commentary when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1895."
2

However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is voided
or revoked for the simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be given efficacy
is to disregard the seeming change of mind of the testatrix. But that change of
mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the
efficacy of the altered words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude. As
Manresa had stated in his commentary on Article 688 of the Spanish Civil Code,
whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688)
la sentencia que no declara la nulidad de un testamento
olografo que contenga palabras tachadas, enmendadas o entre
renglones no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o eficacia de tales
palabras, y nunca al testamento mismo, ya por estar esa
disposicion en parrafo aparte de aquel que determine las
condiciones necesarias para la validez del testamento olografo,
ya porque, de admitir lo contrario, se Ilegaria al absurdo de que
pequefias enmiendas no salvadas, que en nada afectasen a la
parte esencial y respectiva del testamento, vinieran a anular
105

este, y ya porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las escrituras
matrices, siempre que no se salven en la forma prevenida, paro
no el documento que las contenga, y con mayor motivo cuando
las palabras enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de
ortografia o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida
en este ultimo fallo, es preciso que las tachaduras, enmiendas
o entrerrenglonados sin salvar saan de pala bras que no
afecter4 alteren ni uarien de modo substancial la express
voluntad del testador manifiesta en el documento. Asi lo
advierte la sentencia de 29 de Noviembre de 1916, que declara
nulo un testamento olografo por no estar salvada por el
testador la enmienda del guarismo ultimo del ao en que fue
extendido
3
(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent
Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.



G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J .:
This is an appeal by certiorari from the Decision of the Court of
Appeals
1
in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED and
SET ASIDE, and the petition for probate is hereby DISMISSED.
No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch
94,
2
in Sp. Proc. No. Q-37171, and the instrument submitted for
probate is the holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah
Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress, fraud
or undue influence, and was in every respect capacitated to dispose of her
estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by decedent;
and, the will was procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero. He contested
the disposition in the will of a house and lot located in Cabadbaran, Agusan Del
Norte. He claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
106

Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due execution
and the testamentary capacity of the testatrix, this probate court
finds no reason at all for the disallowance of the will for its
failure to comply with the formalities prescribed by law nor for
lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in
question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are
that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and
not to the question of identity of will. No other will was alleged to
have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the
identity of the will presented for probate must be accepted, i.e.,
the will submitted in Court must be deemed to be the will
actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in
the handwriting of the testatrix has been disputed, the
petitioners, however, have satisfactorily shown in Court that the
holographic will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with which
the holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix,
(private respondent) Clemente Sand himself has testified in
Court that the testatrix was completely in her sound mind when
he visited her during her birthday celebration in 1981, at or
around which time the holographic will in question was
executed by the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of
her bounty, and the characterof the testamentary act . . . The
will itself shows that the testatrix even had detailed knowledge
of the nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly. And
considering that she had even written a nursing book which
contained the law and jurisprudence on will and succession,
there is more than sufficient showing that she knows the
character of the testamentary act.
In this wise, the question of identity of the will, its due execution
and the testamentary capacity of the testatrix has to be resolved
in favor of the allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason
for the disallowance of herein holographic will. While it was
alleged that the said will was procured by undue and improper
pressure and influence on the part of the beneficiary or of some
other person, the evidence adduced have not shown any
instance where improper pressure or influence was exerted on
the testatrix. (Private respondent) Clemente Sand has testified
that the testatrix was still alert at the time of the execution of the
will, i.e., at or around the time of her birth anniversary
celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only
refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court
cannot find convincing reason for the disallowance of the will
herein.
Considering then that it is a well-established doctrine in the law
on succession that in case of doubt, testate succession should
be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the
disallowance of the holographic will of the late Annie Sand, the
107

aforesaid will submitted herein must be admitted to
probate.
3
(Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity."
4
It held that the
decedent did not comply with Articles 813 and 814 of the New Civil Code, which
read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration
in a holographic will, the testator must authenticate the same by
his full signature.
It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations and
cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in
any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to
make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud or trick,
and he did not intend that the instrument should be his will at
the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following
cases;
(1) If the formalities required by law have not
been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time
of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should be
his will at the time of affixing his signature
thereto.
These lists are exclusive; no other grounds can serve to disallow a will.
5
Thus,
in a petition to admit a holographic will to probate, the only issues to be resolved
are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent.
6

In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law. It
108

held that Articles 813 and 814 of the New Civil Code, ante, were not complied
with, hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), 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. 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. 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
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements under
Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is
the requirement that they be totally autographic or handwritten by the testator
himself,
7
as provided under Article 810 of the New Civil Code, thus:
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. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably handwritten by
the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositions contained in the holographic will, but not its
probate. If the testator fails to sign and date some of the dispositions, the result
is that these dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
not been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave
an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1985."
8
(Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature,
9
their
presence does not invalidate the will itself.
10
The lack of authentication will only
result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary conditions for the validity of
the holographic will (Article 810). The distinction can be traced to Articles 678
and 688 of the Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article
688.
Art. 688: Holographic wills may be executed only by persons of
full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words,
the testator must identify them over his signature.
109

Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in
Articles 813 and 814 of the same Code are essential to the probate of a
holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon
the extrinsic validity of the will sought to be probated. However, in exceptional
instances, courts are not powerless to do what the situation constrains them to
do, and pass upon certain provisions of the will.
11
In the case at bench,
decedent herself indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led oppositor Dr.
Jose Ajero to question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No.
Q-37171, dated November 19, 1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the above qualification as
regards the Cabadbaran property. No costs.
SO ORDERED.



FIRST DIVISION
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
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 will was written voluntarily.
110

The assessed value of the decedent's 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 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.1wphi1.nt
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
produced and identify the voter's affidavit of the decedent. However, the voters'
affidavit was 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 Matilde's husband, the latter
lived with her in her parent's house for eleven (11) years from 1958 to 1969.
During those eleven (11) years of close association 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 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 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 signed documents in her
presence, when the latter was applying for pasture permit.
111

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 Pinikan
Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's 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:
. . . 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
112

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." There may be no available witness
acquainted with the testator's hand; or even if so familiarized, the
witness maybe 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 see, the law foresees, the possibility that no qualified witness
ma 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. Delfianado, 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 will's
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 party's
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 that the
date, text, and signature on the holographic will 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.
113

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.1wphi1.nt
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 word
"shall," when used in a statute is mandatory.
11

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 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 voter's 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

x x x x x x x x x
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.
13

x x x x x x x x x
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 is the 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.
114

Q. How is this record of accounts made? How is this reflected?
A. In handwritten.
14

x x x x x x x x x
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

x x x x x x x x x
Q. You testified that at 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?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's 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

x x x x x x x x x
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?
115

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

x x x x x x x x x
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

x x x x x x x x x
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. . . . 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?
116

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 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.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.
22

x x x x x x x x x
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

x x x x x x x x x
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

x x x x x x x x x
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

x x x x x x x x x
117

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

x x x x x x x x x
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

x x x x x x x x x
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

x x x x x x x x x
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 witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson,
31
ruling that
the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,
32
we said 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. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But on the other
118

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 ruling holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow petitioners
to adduce evidence in support of their opposition to the probate of the
holographic will of the deceased Matilde Seo vda. de Ramonal.1wphi1.nt
No costs.
SO ORDERED.


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
119

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,
10
as 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:
xxx xxx xxx
(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
120

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 respondent court should have applied Article 811 of the Civil Code,
providing as follows:
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.


G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
121

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J .:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and
in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila
court of first instance with a petition for the probate of a holographic will
allegedly executed by the deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan
ay aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr.
.............................................
5 Bahagi
Fausto E. Gan
.........................................................
2 Bahagi
Rosario E. Gan
.........................................................
2 Bahagi
Filomena Alto
..........................................................
1 Bahagi
Beatriz Alto
..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay
aking ipinamamana sa aking asawang si Idelfonso D. Yap sa
kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng
Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-
Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa
ang magpuno upang matupad ang aking kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge,
1
refused to probate the alleged will. A seventy-page motion for
reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be
summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to
her first cousin, Vicente Esguerra, her desire to make a will. She confided
however that it would be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the information, and
on the strength of it, in the morning of November 5, 1951, in her residence at
Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will
substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of
that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who again read
it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for
her last illness, she entrusted the said will, which was contained in a purse, to
Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked
Felina for the purse: and being afraid of him by reason of his well-known violent
temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the
death of Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time.
2

122

From the oppositor's proof it appears that Felicidad Esguerra had been suffering
from heart disease for several years before her death; that she had been treated
by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that
in May 1950 husband and wife journeyed to the United States wherein for
several weeks she was treated for the disease; that thereafter she felt well and
after visiting interesting places, the couple returned to this country in August
1950. However, her ailment recurred, she suffered several attacks, the most
serious of which happened in the early morning of the first Monday of November
1951 (Nov. 5). The whole household was surprised and alarmed, even the
teachers of the Harvardian Colleges occupying the lower floors and of by the
Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived
at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head
held high by her husband. Injections and oxygen were administered. Following
the doctor's advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and
could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the
most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not know
it, it is strange she executed it in the presence of Felina Esguerra, knowing as
she did that witnesses were unnecessary; (b) in the absence of a showing that
Felina was a confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes, Rosario
Gan Jimenez and Socorro Olarte to read her will, when she precisely wanted its
contents to remain a secret during her lifetime; (d) it is also improbable that her
purpose being to conceal the will from her husband she would carry it around,
even to the hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded the purse
from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe
that he returned it without destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's
evidence that Felicidad did not and could not have executed such holographic
will.
In this appeal, the major portion of appellant's brief discussed the testimony of
the oppositor and of his witnesses in a vigorous effort to discredit them. It
appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We
deem it unnecessary to go over the same matters, because in our opinion the
case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with
other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing the other forms, including holographic
wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-
814. "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."
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be
subscribed by the testator and three credible witnesses in each andevery page;
such witnesses to attest to the number of sheets used and to the fact that the
testator signed in their presence and that they signed in the presence of the
testator and of each other.
The object of such requirements it has been said, is to close the door against
bad faith and fraud, to prevent substitution of wills, to guarantee their truth and
authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have
no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendozavs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly
proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when
such will is submitted to the courts for allowance. For that purpose the testimony
of one of the subscribing witnesses would be sufficient if there is no opposition
(Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity
are demanded, since as stated, they need no witnesses; provided however, that
they are "entirely written, dated, and signed by the hand of the testator himself."
The law, it is reasonable to suppose, regards the document itself as material
123

proof of authenticity, and as its own safeguard, since it could at any time, be
demonstrated to be or not to be in the hands of the testator himself. "In the
probate of a holographic will" says the New Civil Code, "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 such witnesses shall be
required. In the absence of any such witnesses, (familiar with decedent's
handwriting) and if the court deem it necessary, expert testimony may be
resorted to."
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or
they may deliberately lie in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion that such will
has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual sense, and
decide in the face of the document, whether the will submitted to it has indeed
been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only guaranty of
authenticity
3
the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon
the testimony of witnesses who have allegedly seen it and who declare that it
was in the handwriting of the testator? How can the oppositor prove that such
document was not in the testator's handwriting? His witnesses who know
testator's handwriting have not examined it. His experts can not testify, because
there is no way to compare the alleged testament with other documents
admittedly, or proven to be, in the testator's hand. The oppositor will, therefore,
be caught between the upper millstone of his lack of knowledge of the will or the
form thereof, and the nether millstone of his inability to prove its falsity. Again
the proponent's witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity
thereof have taken no pains to examine and compare. Or they may be perjurers
boldly testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a document
which they believed was in the handwriting of the deceased. Of course, the
competency of such perjured witnesses to testify as to the handwriting could be
tested by exhibiting to them other writings sufficiently similar to those written by
the deceased; but what witness or lawyer would not foresee such a move and
prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a
document which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or
witnesses) not only as to the execution, but also as to the contents of the will.
Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a
lost or destroyed will by secondary evidence the testimony of witnesses, in
lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec. 46,
Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen
4
an implied admission that
such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its identity
to be established by the three witnesses who depose that they have no
reasonable doubt that the will was written by the testator (Art. 691). And if the
judge considers that the identity of the will has been proven he shall order that it
be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears
the same implication, to a greater degree. It requires that the surviving spouse
and the legitimate ascendants and descendants be summoned so that they may
make "any statement they may desire to submit with respect to the authenticity
of the will." As it is universally admitted that the holographic will is usually done
by the testator and by himself alone, to prevent others from knowing either its
execution or its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whether in
the face of the document itself they think the testator wrote it. Obviously, this
they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of
either complying with the will if they think it authentic, or to oppose it, if they
think it spurious.
5
Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not essential,
because anyway the relatives may oppose, the answer is that their opposition
will be at a distinct disadvantage, and they have the right and privilege to
comply with the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.
124

We find confirmation of these ideas--about exhibition of the document itself--in
the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that, in
accordance with the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo
segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y firmado por testador,
con expression del ao, mes y dia en que se otorque, resulta evidente
que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la expresada redaccion el
precepto legal, y por el tiempo en que el verbo se emplea,
se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un
defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.
6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley
15--E depues que los herederos e sus fijos ovieren esta manda, fasta ...
annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el
obispo o el juez tomen otros tales tres escritos, que fuesen fechos por
su mano daquel que fizo la manda; e por aquellos escriptos, si semjara
la letra de la manda, sea confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras testimonios confirmen el
escripto de la manda otra vez, y en esta manera vala la manda. (Art.
689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens
of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.
7

Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances,
traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion 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.
8

Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic wills.
We hesitate, however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of the appeal may rest
on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why,
unlike holographic wills, ordinary wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the nature of the wills. In the first,
the only guarantee of authenticity is the handwriting itself; in the second, the
testimony of the subscribing or instrumental witnesses (and of the notary, now).
The loss of the holographic will entails the loss of the only medium of proof; if
the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the testator, etc. And if
they were intimates or trusted friends of the testator they are not likely to end
themselves to any fraudulent scheme to distort his wishes. Last but not least,
they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible
9
only
one man could engineer the fraud this way: after making a clever or passable
imitation of the handwriting and signature of the deceased, he may contrive to
let three honest and credible witnesses see and read the forgery; and the latter,
125

having no interest, could easily fall for it, and in court they would in all good faith
affirm its genuineness and authenticity. The will having been lost the forger
may have purposely destroyed it in an "accident" the oppositors have no way
to expose the trick and the error, because the document itself is not at hand.
And considering that the holographic will may consist of two or three pages,
and only one of them need be signed, the substitution of the unsigned pages,
which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable
feature feasibility of forgery would be added to the several objections to
this kind of wills listed by Castan, Sanchez Roman and Valverde and other well-
known Spanish Commentators and teachers of Civil Law.
10

One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely the
act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting itself
is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to believe that the deceased
should show her will precisely to relatives who had received nothing from it:
Socorro Olarte and Primitivo Reyes. These could pester her into amending her
will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal
the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husband's trip to Davao,
a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to that
"clear and distinct" proof required by Rule 77, sec. 6.
11

Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

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
126

(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.
Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the trial
court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
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.
127

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 destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order dated
July 23, 1979, dismissing her petition to approve the will of the late Ricardo B.
Bonilla, is hereby SET ASIDE.
SO ORDERED.