Javellana vs.

Ledesma
G.R. No. L-7179

Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased
Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950
and May 1952. The contestant was the sister and nearest surviving relative of the
deceased. She appealed from this decision alleging that the will were not executed in
accordance with law.

2. The testament was executed at the house of the testatrix. One the other hand, the
codicil was executed after the enactment of the New Civil Code (NCC), and therefore
had to be acknowledged before a notary public. Now, the contestant, who happens to
be one of the instrumental witnesses asserted that after the codicil was signed and
attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on
the same occasion. Gimotea, however, said that he did not do so, and that the act of
signing and sealing was done afterwards.

2. One of the allegations was that the certificate of acknowledgement to the codicil was
signed somewhere else or in the office of the notary. The ix and the witnesses at the
hospital, was signed and sealed by the notary only when he brought it in his office.

Issue: Whether or not the signing and sealing of the will or codicil in the absence
of the testator and witnesses affects the validity of the will

RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the
signing of the testator, the witnesses and the notary be accomplished in one single act.
All that is required is that every will must be acknowledged before a notary public by
the testator and witnesses. The subsequent signing and sealing is not part of the
acknowledgement itself nor of the testamentary act. Their separate execution out of
the presence of the testator and the witnesses cannot be a violation of the rule that
testaments should be completed without interruption.

Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:

Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the late
Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it
was executed through fraud, deceit, misrepresentation, and undue influence. He
further alleged that the instrument was executed without the testator having been
informed of its contents and finally, that it was not executed in accordance with law.

2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
acknowledged. Despite the objection, the lower court admitted the will to probate on
the ground that there is substantial compliance with the legal requirements of having
at least 3 witnesses even if the notary public was one of them.
Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the
NCC

HELD: NO.
The will is not valid. The notary public cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the said will. An
acknowledging officer cannot serve as witness at the same time.

To acknowledge before means to avow, or to own as genuine, to assent, admit, and

'before' means in front of or preceding in space or ahead of. The notary cannot split his
personality into two so that one will appear before the other to acknowledge his
participation int he making of the will. To permit such situation would be absurd.

Finally, the function of a notary among others is to guard against any illegal or
immoral arrangements, a function defeated if he were to be one of the attesting or
instrumental witnesses. He would be interested in sustaining the validity of the will as
it directly involves himself and the validity of his own act. he would be in an
inconsistent position, thwarting the very purpose of the acknowledgment, which is to
minimize fraud.

Testate Estate of Suntay

Facts:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing
the alleged will and testament executed in Manilaon November 1929, and the alleged
last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by
Jose B. Suntay.The value of the estate left by the deceased is more than P50,000.On
14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in
the city of Amoy, Fookien province, Republicof China, leaving real and personal
properties in the Philippines and a house in Amoy, Fookien province, China, and
children by the firstmarriage had with the late Manuela T. Cruz namely, Apolonio,
Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose,Jr. and a child
named Silvino by the second marriage had with Maria Natividad Lim Billian who
survived him. Intestate proceedingswere instituted in the Court of First Instance of
Bulacan (special proceedings No. 4892) and after hearing letters of administration
wereissued to Apolonio Suntay. After the latter's death Federico C. Suntay was
appointed administrator of the estate. On 15 October 1934the surviving widow filed a
petition in the Court of First Instance of Bulacan for the probate of a last will and
testament claimed to have been executed and signed in the Philippines on November
1929 by the late Jose B. Suntay. This petition was denied because of theloss of said
will after the filing of the petition and before the hearing thereof and of the
insufficiency of the evidence to establish the lossof the said will. An appeal was taken
from said order denying the probate of the will and this Court held the evidence
before the probatecourt sufficient to prove the loss of the will and remanded the case
to the Court of First Instance of Bulacan for the further proceedings(63 Phil., 793). In
spite of the fact that a commission from the probate court was issued on 24 April 1937
for the taking of the depositionof Go Toh, an attesting witness to the will, on 7
February 1938 the probate court denied a motion for continuance of the hearing sent
by cablegram from China by the surviving widow and dismissed the petition. In the
meantime the Pacific War supervened. After liberation, claiming that he had found
among the files, records and documents of his late father a will and
testament in Chinese characters executed and signed by the deceased on 4
January 1931 and that the same was filed, recorded and probated in the
Amoy districtcourt, Province of Fookien, China, Silvino Suntay filed a petition in
the intestate proceedings praying for the probate of the will executedin the Philippines
on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4
January 1931 (Exhibit N).

Issue: (1) W/N thw lost will can be probated; (2) W/N a will probated in China can be
acknowledged in the Philippines.

Ruling: (1) NO. As to the lost will, section 6, Rule 77, provides: No will shall be proved
as a lost or destroyed will unless the execution and validity of the same be established,
and the will is proved to have been in existence at the time of the death of the testator,
or is shown to have been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its provisions are clearly and distinctly
proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the
court, and the certificate must be filed and recorded as other wills are filed and
recorded.

(2) As to the will claimed to have been executed on 4 January 1931 in Amoy, China,
the law on the point in Rule 78. Section 1 of the rule provides: Wills proved and
allowed in a foreign country, according to the laws of such country, may be allowed,
filed, and recorded by the proper Court of First Instance in the Philippines. Section 2
provides: When a copy of such will and the allowance thereof, duly authenticated, is
filed with a petition for allowance in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court shall fix a time and place for
the hearing, and cause notice thereof to be given as in case of an original
will presented for allowance. Section 3 provides: If it appears at the hearing that the
will should be allowed in the Philippines, the court shall so allow it, and a certificate of
its allowance, signed by the Judge, and attested by the seal of the courts, to which
shall be attached a copy of the will, shall be filed and recorded by the clerk, and the
will shall have the same effect as if originally proved and allowed in such court. The
fact that the municipal district court of Amoy, China, is a probate court
must be proved. The law of China on procedure in the probate or allowance of
wills must also be proved. The legal requirements for the execution of a valid will in
China in 1931 should also be established by competent evidence. There is no
proof on these points. The unverified answers to the questions propounded
by counsel for the appellant to the Consul General of the Republic of China set forth
in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible,
because apart from the fact that the office of Consul General does not qualify and
make the person who holds it an expert on the Chinese law on procedure in probate
matters, if the same be admitted, the adverse party would be deprived of his right to
confront and cross-examine the witness. Consuls are appointed to attend to trade
matters. Moreover, it appears that all the proceedings had in the municipal district
court of Amoy were for the purpose of taking the testimony of two attesting witnesses
to the will and that the order of the municipal district court of Amoy does
not purport to probate the will. In the absence of proof that the municipal
district court of Amoy is a probate court and on the Chinese law of procedure in
probate matters, it may be presumed that the proceedings in the matter of probating
or allowing a will in the Chinese courts are the a deposition or to a perpetuation of
testimony, and even if it were so it does not measure same as those provided for in our
laws on the subject. It is a proceedings in rem and for the validity of such proceedings
personal notice or by publication or both to all interested parties must be made. The
interested parties inthe case were known to reside in the Philippines.

The evidence shows that no such notice was received by the interested
parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of
24 February 1948). The proceedings had in the municipal districtcourt of Amoy,
China, may be likened toe or come up to the standard of such proceedings in the
Philippines for lack of notice to allinterested parties and the proceedings were held at
the back of such interested parties.In view thereof, the will and the alleged probate
thereof cannot be said to have been done in accordance with the accepted basic and
fundamental concepts and principles followed in the probate and allowance
of wills. Consequently, the authenticated transcript of proceedings held in the
municipal district court of Amoy, China, cannot be deemed and accepted as
proceedings leading to the probateor allowance of a will and, therefore, the will
referred to therein cannot be allowed, filed and recorded by a competent
court of thi scountry.
G.R. No. L-44702 July 30, 1979