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394 SUPREME COURT REPORTS ANNOTATED

Guerrero vs. Bihis

*
G.R. No. 174144. April 17, 2007.

BELLA A. GUERRERO, petitioner, vs.

RESURRECION A. BIHIS, respondent.

Wills and Succession; Notarial Law; Words and

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

Same; Same; The acknowledgment of a notarial will

coerces the testator and the instrumental witnesses to declare
before an officer of the law, the notary public, that they
executed and subscribed to the will as their own free act or
deed; Acknowledgment can only be made before a competent
officer, that is, a lawyer duly commissioned as a notary
public.The acknowledgment of a notarial will coerces the
testator and the instrumental witnesses to declare before an
officer of the law, the notary public, that they executed and
subscribed to

_______________

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* FIRST DIVISION.

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VOL. 521, APRIL 17, 2007 395

Guerrero vs. Bihis

the will as their own free act or deed. Such declaration is

under oath and under pain of perjury, thus paving the way
for the criminal prosecution of persons who participate in
the execution of spurious wills, or those executed without
the free consent of the testator. It also provides a further
degree of assurance that the testator is of a certain mindset
in making the testamentary dispositions to the persons
instituted as heirs or designated as devisees or legatees in
the will. Acknowledgment can only be made before a
competent officer, that is, a lawyer duly commissioned as a
notary public.

Same; Same; Outside the place of his commission, a

notary public is bereft of power to perform any notarial act
he is not a notary public; An acknowledgment taken outside
the territorial limits of the officers jurisdiction is void as if
the person taking it were wholly without official character.
A notary publics commission is the grant of authority in his
favor to perform notarial acts. It is issued within and for a
particular territorial jurisdiction and the notary publics
authority is co-extensive with it. In other words, a notary
public is authorized to perform notarial acts, including the
taking of acknowledgments, within that territorial
jurisdiction only. Outside the place of his commission, he is
bereft of power to perform any notarial act; he, is not a
notary public. Any notarial act outside the limits of his
jurisdiction has no force and effect. As this Court
categorically pronounced in Tecson v. Tecson, 61 Phil. 781
(1935): An acknowledgment taken outside the territorial
limits of the officers jurisdiction is void as if the person
taking it were wholly without official character.

Same; Same; The violation of a mandatory or a

prohibitory statute renders the act illegal and void unless
the law itself declares its continuing validity.Article 5 of
the Civil Code provides: ART. 5. Acts executed against the
provisions of mandatory or prohibitory laws shall be void,

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except when the law itself authorizes their validity. The

violation of a mandatory or a prohibitory statute renders
the act illegal and void unless the law itself declares its
continuing validity. Here, mandatory and prohibitory
statutes were transgressed in the execution of the alleged
acknowledgment. The compulsory language of Article 806
of the Civil Code was not complied with and the interdiction
of Article 240 of the Notarial Law was breached.
Ineluctably, the acts of the testatrix, her witnesses and
Atty. Directo were all completely void.

396

396 SUPREME COURT REPORTS ANNOTATED

Guerrero vs. Bihis

PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.
Oliver S. Garcia for petitioner.
Ryan Jan G. Cruz for respondent.

CORONA, J.:

The Scriptures
1
tell the story of the brothers Jacob and
Esau, siblings who fought bitterly over the
inheritance of their father Isaacs estate.
Jurisprudence is also replete with cases involving
acrimonious conflicts between brothers and sisters
over successional rights. This case is no exception.
On February 19, 1994, Felisa Tamio de
Buenaventura, mother of petitioner Bella A. Guerrero
and respondent Resurreccion A, Bihis, died at the
Metropolitan Hospital in Tondo, Manila.
On May 24, 1994, petitioner filed a petition for the
probate of the2 last will and testament of the decedent
in Branch 95 of the Regional Trial Court of Quezon
City where the case was docketed as Sp. Proc. No. Q-
9420661.
The petition alleged the following: petitioner was
named as executrix in the decedents will and she was
legally qualified to act as such; the decedent was a
citizen of the Philippines at

_______________

1 Jacob and Esau were the sons of Isaac and Rebekah. Even
before they were born, they were struggling against each other in

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the womb of their mother. Their prenatal striving foreshadowed

later conflict. (Genesis 25:2126) Jacob, the younger of the two,
desired Esaus birthrightthe special honor that Esau possessed as
the older son which entitled him to a double portion of his fathers
inheritance. Jacob was later on able to acquire not only Esaus
birthright and superior right to inheritance but also their fathers
blessing. (Genesis 25:2734, 27:140)
2 Presided by Judge (now Sandiganbayan Associate Justice)
Diosdado M. Peralta.

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VOL. 521, APRIL 17, 2007 397

Guerrero vs. Bihis

the time of her death; at the time of the execution of

the will, the testatrix was 79 years old, of sound and
disposing mind, not acting under duress, fraud or
undue influence and was capacitated to dispose of her
estate by will.
Respondent opposed her elder sisters petition on
the following grounds: the will was not executed and
attested as required by law; its attestation clause and
acknowledgment did not comply with the
requirements of the law; the signature of the testatrix
was procured by fraud and petitioner and her children
procured the will through undue and improper
pressure and influence.
In an order dated November 9, 1994, the trial court
appointed petitioner as special administratrix of the
decedents estate. Respondent opposed petitioners
appointment but subsequently withdrew her
opposition. Petitioner took her oath as temporary
special administratrix and letters of special
administration were issued to her.
On January 17, 2000, after petitioner presented
her evidence, respondent filed a demurrer thereto
alleging that petitioners evidence failed to establish
that the decedents will complied with Articles 804
and 805 of the Civil Code.
In a resolution dated July 6, 2001, the trial court
denied the probate of the will ruling that Article 806
of the Civil Code was not complied with because the
will was acknowledged by the testatrix and the
witnesses at the testatrixs residence at No. 40
Kanlaon Street, Quezon City before Atty. Macario O.
Directo who was a commissioned notary public for

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and in Caloocan City. The dispositive portion of the

resolution read:

WHEREFORE, in view of the foregoing, the Court finds,

and so declares that it cannot admit the last will and
testament of the late Felisa Tamio de Buenaventura to
probate for the reasons hereinabove discussed and also in
accordance with Article 839 [of the Civil Code] which
provides that if the formalities required by law have not
been complied with, the will shall be disallowed. In view
thereof, the Court shall henceforth proceed with intestate
succession

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398 SUPREME COURT REPORTS ANNOTATED

Guerrero vs. Bihis

in regard to the estate of the deceased Felisa Tamio de

Buenaventura in accordance with Article 960 of the [Civil
Code], to wit: Art. 960. Legal or intestate succession takes
place: (1) If a person dies without a will, or with a void will,
or one which has subsequently
3
lost its validity, x x x.
SO ORDERED.

Petitioner elevated the case to the Court of Appeals

but the appellate court dismissed the4 appeal and
affirmed the resolution 5
of the trial court.
Thus, this petition.
Petitioner admits that the will was acknowledged
by the testatrix and the witnesses at the testatrixs
residence in Quezon City before Atty. Directo and
that, at that time, Atty. Directo was a commissioned
notary public for and in Caloocan City. She, however,
asserts that the fact that the notary public was acting
outside his territorial jurisdiction did not affect the
validity of the notarial will.
Did the will acknowledged by the testatrix and
the instrumental witnesses before a notary public
acting outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code? It
did not.
Article 806 of the Civil Code provides:

ART. 806. Every will must be acknowledged before a

notary public by the testator and the witnesses. The notary
public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.

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_______________

3 Rollo, pp. 8187.

4 Decision, dated July 31, 2006 in CA-G.R. CV No. 76707.
Penned by Associate Justice Amelita G. Tolentino and concurred in
by Associate Justices Portia Alio-Hormachuelos and Santiago
Javier Ranada (retired) of the Fourth Division of the Court of
Appeals. Id., pp. 5564.
5 Under Rule 45 of the Rules of Court.

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VOL. 521, APRIL 17, 2007 399

Guerrero vs. Bihis

One of the formalities required by law in connection

with the execution of a notarial will is that it must be
acknowledged before6
a notary public by the testator
and the witnesses. This formal requirement is one of7
the indispensable requisites for the validity of a will.
In other words, a notarial will that is not
acknowledged before a notary public by the testator
and the instrumental witnesses is void and cannot be
accepted for probate.
An acknowledgment is the act of one who has
executed a deed in going before some competent 8
officer and declaring it to be his act or deed. In the
case of a notarial will, that competent officer is the
notary public.
The acknowledgment of a notarial will coerces the
testator and the instrumental witnesses to declare
before an officer of the law, the notary public, that
they executed and subscribed

_______________

6 The other formalities are:

(1) the will must be in writing;

(2) it must be written in a language or dialect known to the
testator;
(3) it must be subscribed at the end thereof by the testator
himself or by the testators name written by some other
person in his presence and by his express direction;
(4) it must be attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another;
(5) the testator or the person requested by him to write his
name and the instrumental witnesses of the will shall also

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sign each and every page thereof, except the last, on the left
margin;
(6) all the pages of the will must be numbered correlatively in
letters placed on the upper part of each page and
(7) the will must contain an attestation clause.

7 In the Matter of the Testate Estate of the Deceased Vicente G.

Alberto, 105 Phil. 1281 (1959).
8 Tigno v. Aquino, G.R. No. 129416, 25 November 2004, 444
SCRA 61.

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400 SUPREME COURT REPORTS ANNOTATED

Guerrero vs. Bihis

9
to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury,
thus paving the way for the criminal prosecution of
persons who participate in the execution of spurious
wills, or those
10
executed without the free consent of
the testator. It also provides a. further degree of
assurance that the testator is of a certain mindset in
making the testamentary dispositions to the persons
instituted as heirs11 or designated as devisees or
legatees in the will.
Acknowledgment can only be made before a
competent officer, that is, a lawyer duly commissioned
as a notary public. In this connection, the relevant
provisions ofthe Notarial Law provide:

SECTION 237.Form of commission for notary public.The

appointment of a notary public shall be in writing, signed
by the judge, and substantially in the following form:

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF __________

This is to certify that ________, of the municipality of

_________ in said province, was on the ____ day of
___________, anno Domini nineteen hundred and ____,
appointed by me a notary public, within and for the said
province, for the term ending on the first day of January,
anno Domini nineteen hundred and _________.
_________________
Judge of the Court of

12
First Instance of said
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12
First Instance of said
Province
x x x x x x x x x
SECTION 240.Territorial jurisdiction.The jurisdiction
of a notary public in a province shall be co-extensive with
the province.

_______________

9 Azuela v.Court of Appeals, G.R. No. 122880, 12 April 2006, 487

SCRA 119.
10 Id.
11 Id.
12 Now, Regional Trial Court.

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VOL. 521, APRIL 17, 2007 401

Guerrero vs. Bihis

The jurisdiction of a notary public in the City of Manila

shall be coextensive with said city. No notary shall
possess authority to do any notarial act beyond the
limits of his jurisdiction. (emphases supplied)

A notary publics commission is the grant13

of authority
in his favor to perform notarial acts. It is issued
within and for a particular territorial jurisdiction
and the notary publics authority is co-extensive with
it. In other words, a notary public is authorized to
perform notarial acts, including the taking of
acknowledgments, within that territorial jurisdiction
only. Outside the place of his commission, he is bereft
of power to perform any notarial act; he, is not a
notary public. Any notarial act outside the limits of
his jurisdiction has no force and effect. As this
14
Court
categorically pronounced in Tecson v. Tecson:

An acknowledgment taken outside the territorial limits of

the officers jurisdiction is void as if the person taking it
were wholly without official character. (emphasis supplied)

Since Atty. Directo was not a commissioned notary

public for and in Quezon City, he lacked the authority
to take the acknowledgment of the testatrix and the
instrumental witnesses. In the same vein, the
testatrix and her witnesses could not have validly
acknowledged the will before him. Thus, Felisa Tamio

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de Buenaventuras last will and testament was, in

effect, not acknowledged as required by law.
Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory

or prohibitory laws shall be void, except when the law itself
authorizes their validity.

The violation of a mandatory or a prohibitory statute

renders the act illegal and void unless the law itself
declares its con-

_______________

13 2004 Rules on Notarial Practice.

14 61 Phil. 781 (1935).

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402 SUPREME COURT REPORTS ANNOTATED

Guerrero vs. Bihis

tinuing validity. Here, mandatory and prohibitory

statutes were transgressed in the execution of the
alleged acknowledgment. The compulsory language
of Article 806 of the Civil Code was not complied with
and the interdiction of Article 240 of the Notarial Law
was breached. Ineluctably, the acts of the testatrix,
her witnesses and Atty. Directo were all completely
void.
The Court cannot turn a blind eye to Atty. Directos
participation in the preparation, execution and
unlawful acknowledgment of Felisa Tamio de
Buenaventuras will. Had he exercised his notarial
commission properly, the intent of the law 15
to
effectuate the decedents final statements as
16
expressed in her will would not have come to naught.
Hence, Atty. Directo should show cause why he
should not be administratively sanctioned as a
member of the bar and as an officer of the court.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
Let a copy of this decision be furnished the
Commission on Bar Discipline of the Integrated Bar
of the Philippines for investigation, report and
recommendation on the possible misconduct of Atty.
Macario O. Directo.

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15 A will is the testator speaking after death. Its provisions have

substantially the same force and effect in the probate court as if the
testator stood before the court in full life making the declarations
by word of mouth as they appear in the will. (Dissenting opinion of
J. Moreland in Santos v. Manalang, 27 Phil. 209 [1914])
16 For one, he testified during the proceedings in the trial court
that the will was executed and signed by the testatrix in his
presence and in the presence of the instrumental witnesses in the
decedents house in Quezon City and it was also there where the
same was acknowledged although his commission was for Caloocan
City. He also made it appear in the acknowledgment that the
testatrix and the witnesses personally appeared before him to
execute and knowledge the will in Caloocan City where he was
commissioned as a notary public.

403

VOL. 521, APRIL 19, 2007 403

Espaol vs. Toledo-Mupas

SO ORDERED.

Sandoval-Gutierrez, Azcuna and Garcia, JJ.,

concur.
Puno (C.J., Chairperson), No part.

Petition denied.

Notes.Validity of a deed of sale is not affected by

notarization of document in Tarlac though the land is
located in Pangasinan. (Sales vs. Court of Appeals,
211 SCRA 858 [1992])
Notarization of a deed of extrajudicial settlement
has the effect of making it a public document that can
bind third parties. (Alejandrino vs. Court of Appeals,
295 SCRA 536 [1998])

o0o

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