VOL.

222, MAY 28, 1993 781

Caneda vs. Court of Appeals

*
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, vs. HON.
COURT OF APPEALS and WILLIAM CABRERA, as
Special Administrator of the Estate of Mateo Caballero,
respondents.

Wills and Succession; There are two (2) kinds of wills.—In

addition, the ordinary will must be acknowledged before a notary
public by the testator and the attesting witnesses, hence it is
likewise known as a notarial will. Where the testator is deaf or a
deaf-mute, Article 807 requires that he must personally read the
will, if able to do so. Otherwise, he should designate two persons
who will 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. The other kind of will is the holographic
will, which Article 810 defines as one that is entirely written,
dated, and signed by the hand of the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by
witnesses. A common requirement in both kinds of wills is that
they should be in writing and must have been executed in a
language or dialect known to the testator.

Same; Attestation clause valid even if in a language not

known to testator.—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. The last paragraph of
_______________

* SECOND DIVISION.

** The first name of this representative party petitioner is also spelled

“Armistica” in the corresponding allegation of the petition.

782

782 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

Article 805 merely requires that, in such a case, the attestation

clause shall be interpreted to said witnesses.

Same; Purposes of attestation clause.—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; whereas the subscription of the
signatures 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.

Same; Same.—Further, by attesting and subscribing to the

will, the witnesses thereby declare the due execution of the will as
embodied in the attestation clause. The attestation clause,
therefore, provides strong legal guaranties for the due execution
of a will and to insure the authenticity thereof. As it appertains
only to the witnesses and not to the testator, it need be signed
only by them. 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
the witnesses.

Same; Words and Phrases; “Attestation” and “Subscription”

distinguished.—It will be noted that Article 805 requires that the
witnesses 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 the
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.
 Same; Attestation clause which does not state that testament
“was signed by the witnesses in the presence of one another and of
the testator” renders the will null and void.—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,” obvi-

783

VOL. 222, MAY 28, 1993 783

Caneda vs. Court of Appeals

ously refers to the testator and not the instrumental witnesses as

it is immediately preceded by the words “as his Last Will and
Testament.” On the other hand, although the words “in the
presence of the testator and in the presence of each and all of us”
may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said
phrase immediately follows the words “he has signed the same
and every page thereof, on the spaces provided for his signature
and on the left hand margin.” What is then clearly lacking, in the
final logical analysis, is the statement that the witnesses signed the
will and every page thereof in the presence of the testator and of
one another. It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection which
must necessarily result in the disallowance of the will that is here
sought to be admitted to probate.

Same; Mere defects in form in the attestation clause do not

render will void.—We stress once more that under Article 809, the
defects or 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.

Same; Same; Defects in attestation clause which require

submission of parol evidence not mere defects of form.—In the case
at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied only by
extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from which 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 indirection what in law he cannot do directly.

Same; Same; Same.—It 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

784

784 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

invalidation of the attestation clause and ultimat ely, of the will

itself.

PETITION for review on certiorari of the decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

     Palma, Palma & Associates for petitioners.
     Emilio Lumontad, Jr. for private respondent.

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
1
 1
that last will. It was declared therein, among other things,
that the testator was leaving by way of legacies and devises
his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni
G. Cabrera and Marcosa Alcantara, 2
all of whom do not
appear to be related to the testator.
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 or another. On May 29,
1980, the testator passed away

_______________

1 Original Record, 1-3.

2 Exhibit C; Folder of Exhibits in Special Proceeding No. 3899-R, 7-8.

785

VOL. 222, MAY 28, 1993 785

Caneda vs. Court of Appeals

before3 his petition could finally be heard by the probate

court. On February 25, 1981, Benoni Cabrera, one of the
legatees named in the will, sought his appointment as
special administrator of the testator’s estate, the estimated
value of which was P24,000.00, and he was so appointed
4
by
the probate court in its order of March 6, 1981.
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 for intestate proceedings 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 5
appointment of a special
administrator for his estate.
Benoni Cabrera died on February &, 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 proceedings 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 6it remained until the
conclusion of the probate proceedings.
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 a poor state of health such that he
could not have possibly executed the same. Petitioners
likewise reiterated the issue as 7to the genuineness of the
signature of the testator therein.

_______________

3 Original Record, 1-3, 7, 24, 32.

4 Ibid., 32-34.
5 Ibid., 68-69, 157.
6 Ibid., 98, 116, 143, 148, 157-159.
7 TSN, July 3, 1986, 3-5, 13-17, 23-27; July 18, 1986, 5-10.

786

786 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

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 8
presented in the probate hearing as they had died by then.
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:

“x x x 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 this 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 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 9 that it was
executed in accordance with all the requisites of law.”

Undaunted by said judgment of the probate court,

petitioners elevated the case to the Court of Appeals in CA-
G.R. CV No. 19669. They asserted therein that the will in
question is null and

_____________

8 TSN, October 9, 1984, 11-26; January 4, 1985, 2; April 22, 1985, 10-
18.
9 Original Record, 339-340; per Judge Francis J. Militante.

787

VOL. 222, MAY 28, 1993 787

Caneda vs. Court of Appeals

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
10
15, 1991, respondent court promulgated its
decision 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 substantially 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
testator, Mateo Caballero, has published unto us the foregoing
will consisting of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters on 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’ (Italics 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
11
is in substantial compliance with the requirement of
the law.”

Petitioners moved for the reconsideration of said ruling of

respondent court, but the same was
12
denied in the latter’s
resolution of January 14, 1992, hence this appeal now
before us.

____________

10 Justice Cezar D. Francisco, ponente, with Justices Reynato S. Puno

and Jaime D. Lantin, concurring.
11 Rollo, 9.
12 Ibid., 33.

788

788 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

Petitioners assert that respondent court has ruled upon

said issue in a manner not in accord with the law and the
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 explain, 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 certain13 degree the
disposition of his estate after his death. Under the
Civil Code, there are two14
kinds of wills which a
testator may execute. 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.
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.”

In addition, the ordinary will must be acknowledged before

a

_____________

13 Rivera vs. Palmanori, 40 Phil. 116 (1919); Art. 810, Civil Code.
14 Report of the Code Commission, 103-105.

789

VOL. 222, MAY 28, 1993 789

Caneda vs. Court of Appeals

15
notary public by the testator and the attesting witnesses,
hence it is likewise known as a notarial will. Where the
testator is deaf or a deaf-mute, Article 807 requires that he
must personally read the will, if able to do so. Otherwise,
he should designate two persons who will 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,
16
by the notary public before whom
it is acknowledged.
The other kind of will is the holographic will, which
Article 810 defines as one that is entirely written, dated,
and signed by the hand of the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by
witnesses. A common requirement in both kinds of wills is
that they should be in writing and must have been 17
executed in a language or dialect known to the testator.
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
18
need not even be
known to the attesting witnesses. 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 19them and to the
manner of the execution of the same. 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 20the
essential formalities required by law has been observed. It
is made for the purpose of preserving in a permanent form
a record

______________

15 Art. 806, Civil Code.

16 Art. 808, id.
17 Art. 804, id.
18 Tolentino, Civil Code of the Philippines, 68 (1979 ed.).
19 Testate Estate of Paula Toray, 87 Phil. 139 (1950).
20 Vda. de Ramos, et al. vs. Court of Appeals et al., 81 SCRA 393 (1978).

790

790 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

of the fact that attended the execution of a particular will,

so that in case of failure of the memory of the attesting
witnesses,
21
or other casualty, such facts may still be
proved.
Under the third paragraph of Article 805, such a clause,
the complete
22
lack of which would result in the invalidity of
the will, should state (1) the number of 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 the attesting 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 23and to prevent any increase or
decrease in the pages; whereas the subscription of the
signatures 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
instrument24 executed by the testator and attested to by the
witnesses.
 Further, by attesting and subscribing to the will, the
witnesses thereby declare the due 25execution of the will as
embodied in the attestation clause. The attestation clause,
therefore, provides strong legal guaranties for the due 26
execution of a will and to insure the authenticity thereof.
As it appertains only to the witnesses27 and not to the
testator, it need be signed only by them. 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 the

_______________

21 Leynez vs. Leynez, 68 Phil. 745 (1939).

22 In re Estate of Neumark, 46 Phil. 841 (1923).
23 In The Matter of the Estate of Sanguinsin, 41 Phil. 875 (1920); In re
Will of Andrada, 42 Phil. 180 (1921).
24 Testate Estate of Paula Toray, supra.
25 Gonzales vs. Gonzales de Carungcong, 90 Phil. 444 (1951).
26 Echevarria vs. Sarmiento, 66 Phil. 611 (1938).
27 Abangan vs. Abangan, 40 Phil. 476 (1919).

791

VOL. 222, MAY 28, 1993 791

Caneda vs. Court of Appeals

28
witnesses.
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 29
with
respect to the formalities in the execution of wills. x x x”

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 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 end30 thereof by the three attesting
witnesses thereto. 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 letters on
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.”

______________

28 Cagro vs. Cagro, 92 Phil. 1032 (1953).

29 Report of the Code Commission, 103.
30 Exhibits C to C-18; Folder of Exhibits in Special Proceeding No.
3899-R, 7-9; Original Record, 4-6.

792

792 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

It will be noted that Article 805 requires that the witnesses

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
the 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
31
of the witnesses, for the sole
purpose of identification. 32
In Taboada vs. Rosal, 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 witnessed 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

_____________

31 Hills vs. Davis, 167 P. 465, 466, 64 Okl. 253, L.R.A., 1918B 687.
32 118 SCRA 195 (1982).

793

VOL. 222, MAY 28, 1993 793

Caneda vs. Court of Appeals

signatures to the will in the presence of the testator and of

each other.
The phrase “and he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin,” obviously refers to the testator and not
the instrumental witnesses as it is immediately preceded
by the words “as his Last Will and Testament.” On the
other hand, although the words “in the presence of the
testator and in the presence of each and all of us” may, at
first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring
only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words “he has
signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin.”
What is then clearly lacking, in the final logical analysis, is
the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection
which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate.
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 proved that the will was in fact
executed and attested in substantial compliance with all the
requirements of article 805” (Italics 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 witnesses
affixed their respective signatures in the presence of the
testator and of each other since, as petitioners correctly
observed, the presence of said signatures only establishes
the fact that it was indeed signed, but

794

794 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

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, the33 will cannot
be stamped with the imprimatur of effectivity.
We believe34that the following comment of former Justice
J.B.L. Reyes 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:

“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.” (Emphasis ours.)

3. We stress once more that under Article 809, the

defects or 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

_____________

33 Andalis vs. Pulgueras, 59 Phil. 643 (1934).

34 Lawyer’s Journal, November 30, 1950, 566, cited in Tolentino, op.
cit., supra, note 17 at 111-112.

795

VOL. 222, MAY 28, 1993 795

Caneda vs. Court of Appeals

35
testator and of each other. In such a situation, the defect
is not only in the form or the 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 any
statement, or an implication thereof, that the attesting
witnesses did actually bear witness to the signing by the
testator of the will and all 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 invoked 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 with in the execution
of the will. In other words, the 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 only by extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis
whatsoever from which 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 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 compli-

______________

35 Uy Coque vs. Sioca, 43 Phil. 405 (1922); Gumban vs. Gorecho, 50

Phil. 30 (1927); Quinto vs. Morata, 54 Phil. 481 (1930); Rodriguez vs.
Alcala, 55 Phil. 150 (1930); Testate Estate of Paula Toray, supra; Gil vs.
Marciano, 88 Phil. 261 (1951).

796

796 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

ance 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 decision 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 advanced the liberal or substantial compliance
rule. This36 was first laid down in the case of Abangan vs.
Abangan, 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 fnistrative of the testator’s last will, must be 37
disregarded. The 38subsequent cases of 39
Avera vs. Garcia, 40
Aldaba vs. Roque, Unson vs. Abella,41 Pecson vs. Coronel,
Fernandez
42
vs. Vergel de Dios, et al., and Nayve vs. Mojal,
et al. 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
43
cases of In the
44
Matter of the
Estate of Saguinsin, In re Will of Andrada, Uy Coque vs.

_______________

36 40 Phil. 476 (1919).

37 42 Phil. 145 (1921).
38 43 Phil. 378 (1922).
39 43 Phil. 494 (1922).
40 45 Phil. 216 (1923).
41 46 Phil. 922 (1924).
42 47 Phil. 152 (1924).
43 41 Phil. 875 (1920).
44 42 Phil. 180 (1921).

797

VOL. 222, MAY 28, 1993 797

Caneda vs. Court of Appeals

45 46 47
Sioca, In re Estate of Neumark,48 and Sano vs. Quintana.
Gumban vs. Gorecho, et al., 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), and Fernandez
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 state 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.

_______________

45 43 Phil. 405 (1922).

46 46 Phil. 841 (1923).
47 48 Phil. 506 (1925).
48 50 Phil. 30 (1927).

798

798 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

“It is a habit of courts to reaffirm or distinguish previous cases;

seldom do they admit inconsistency in doctrine. Yet here, unless
aided by casuistry of the extreme type, it would be 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 will shall be disallowed in
either of the following cases: 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 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 49
threshed out therein.50
The cases of Quinto vs. Morata,
Rodriguez vs. Alcala,

_______________

49 54 Phil. 481(1930).
50 55 Phil. 150 (1930).

799

VOL. 222, MAY 28, 1993 799

Caneda vs. Court of Appeals

51 52
Echevarria vs. Sarmiento, and Testate Estate of Toray
went the way of the ruling 53
as restated in Gumban.
54
But De
Gala vs. Gonzales,
55
et al., Rey vs. Cartagena, 56
De Ticson vs.
De Gorostiza,
57
Sebastian58
vs. Panganiban, Rodriguez
59
vs.
Yap, Grey
60
vs. Fabia, Leynez 61
vs. Leynez, Martir vs. 62
Martir, Alcala vs. 63De Villa, Sabado vs. 64
Fernandez,
Mendoza vs. Pilapil, and Lopez vs. Liboro, 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 atti-

_______________

51 66 Phil. 611 (1933).

52 87 Phil. 139 (1950).
53 53 Phil. 104 (1929).
54 56 Phil. 282 (1931).
55 57 Phil. 437 (1932).
56 59 Phil. 653 (1934).
57 68 Phil. 126 (1939).
58 68 Phil. 128 (1939).
59 68 Phil. 745 (1939).
60 70 Phil. 89 (1940).
61 71 Phil. 561 (1940).
62 72 Phil. 531 (1941).
63 72 Phil. 546 (1941).
64 81 Phil. 429 (1948).

800

800 SUPREME COURT REPORTS ANNOTATED

Caneda vs. Court of Appeals

tude and has become more liberal in the interpretation of the

formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez 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
65

substantial compliance with all the requirements of article 829.’ ”

The so-called
66
liberal rule, the Court said in Gil vs.
Murciano, “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 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 67
of the
attestation clause and ultimately, of the will itself.

______________

65 Report of the Code Commission, 104-105.

66 88 Phil. 260, 281 (1951).
67 Tolentino, op. cit., supra, note 17 at 111.

801

VOL. 222, MAY 31, 1993 801

People vs. Jotoy

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

     Narvasa (C.J., Chairman), Padilla and Nocon, JJ.,

concur.

Petition granted. Decision reversed and set aside.

Notes.—Persons convicted of falsification of a document,

perjury or false testimony are disqualified from being
witnesses to a will (People vs. Umali, 193 SCRA 493).
Failure to attach will to petition not critical where it was
adduced in evidence (Heirs of Fran vs. Salas, 210 SCRA
303).

——o0o——

© Copyright 2020 Central Book Supply, Inc. All rights reserved.