add'tl cases in succession

8/2/2019 Add'Tl Cases in Succession

1/131

Republic of the PhilippinesSUPREME COURTManila

EN BANC

9. 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 whichSerapia de Gala, a niece of Severina, was designated executrix. Thetestatrix died in November, 1926, leaving no heirs by force of law, and onDecember 2, 1926, Serapia, through her counsel, presented the will forprobate. Apolinario Gonzales, a nephew of the deceased, filed anopposition to the will on the ground that it had not been executed in

conformity with the provisions of section 618 of the Code of CivilProcedure. On April 2, 1927, Serapia de Gala was appointed specialadministratrix of the estate of the deceased. She returned an inventory ofthe estate on March 31, 1927, and made several demands upon SinforosoOna, the surviving husband of the deceased, for the delivery to her of theproperty inventoried and of which he was in possession.

On September 20, 1928, the Court of First Instance ordered Sinforoso Onato deliver to Serapia de Gala all the property left by the deceased. Insteadof delivering the property as ordered, Sinforoso filed a motion asking the

appointment of Serapia de Gala as special administratrix be cancelled andthat he, Sinforoso, be appointed in her stead. The motion was opposed byboth Apolinario Gonzales and by Serapia de Gala, but on March 3, 1928, itwas nevertheless granted, Serapia was removed, and Sinforoso wasappointed special administrator in her place, principally on the ground thathe had possession of the property in question and that his appointmentwould simplify the proceedings.


2/131

In the meantime and after various continuances and delays, the courtbelow in an order dated January 20, 1928, declared the will valid andadmitted it to probate. All of the parties appealed, Serapia de Gala from theorder removing her from the office of special administratrix, and ApolinarioGonzales and Sinforoso Ona from the order probating the will.

Serapia's appeal requires but little discussion. The burden of the argumentof her counsel is that a special administrator cannot be removed except forone or more of the causes stated in section 653 of the Code of CivilProcedure. But that section can only apply to executors and regularadministrators, and the office of a special administrator is quite differentfrom that of regular administrator. The appointment of a specialadministrator lies entirely in the sound discretion of the court; the functionof 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 acreditor and cannot pay any debts of the deceased. The fact that no appealcan be taken from the appointment of a special administrator indicates thatboth his appointment and his removal are purely discretionary, and wecannot find that the court below abused its discretion in the present case. Inremoving Serapia de Gala and appointing the present possessor of theproperty pending the final determination of the validity of the will, the courtprobably 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 theCode of Civil Procedure as amended by Act No. 2645. That section readsas follows:

No will, except as provided in the preceding section, shall be valid topass any estate, real or personal, nor charge or affect the same,unless it be written in the language or dialect known by the testatorand signed by him, or by the testator's name written by some otherperson in his presence, and by his express direction, and attested

and subscribed by three or more credible witnesses in the presenceof the testator and of each other. The testator or the personrequested by him to write his name and the instrumental witnesses ofthe will, shall also sign, as aforesaid, each and every page thereof, onthe left margin, and said pages shall be numbered correlatively inletters placed on the upper part of each sheet. The attestation shallstate the number of sheets or pages used, upon which the will is


3/131

written, and the fact that the testator signed the will and every pagethereof, or caused some other person to write his name, under hisexpress direction, in the presence of three witnesses, and the latterwitnessed and signed the will and all pages thereof in the presence ofthe testator and of each other.

The principal points raised by the appeal are (1) that the person requestedto sign the name of the testatrix signed only the latter's name and not herown; (2) that the attestation clause does not mention the placing of thethumb-mark of the testatrix in the will; and (3) that the fact that the will hadbeen signed in the presence of the witnesses was not stated in theattestation 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 fivepages. The name of the old woman, Maria Salva, was written on theleft 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 inthe center of her name she placed her thumb-mark. The threewitnesses likewise signed on the left-hand margin and at the end ofthe will.

On these facts, the theory of the trial judge was that under theprovisions of section 618 of the Code of Civil Procedure, as amendedby Act No. 2645, it was essential to the validity of the will that theperson writing the name of the maker of the will also sign. Under thelaw prior to the amendment, it had been held by this court that wherea testator is unable to write and his name is signed by another at hisrequest, in his presence and in that of the subscribing witnessesthereto, 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 ownor not. (Barut vs. Cabacungan (1912), 21 Phil., 461). But his Honor,the trial judge emphasizes that the amendment introduced into thelaw the following sentence: 'The testator or the person requested byhim to write his name and the instrumental witnesses of the will, shallalso sign, as aforesaid, each and every page thereof, on the leftmargin . . ..' This requirement, it is said, was not lived up to in thisinstance.


4/131

There is, however, an entirely different view which can be taken ofthe situation. This is that the testatrix placed her thumb-mark on thewill in the proper places. When, therefore, the law says that the willshall be 'signed' by the testator or testatrix, the law is fulfilled not onlyby the customary written signature but by the testator or testatrix'thumb-mark. The construction put upon the word 'signed' by mostcourts is the original meaning of a signum or sign, rather than thederivative meaning of a sign manual or handwriting. A statuterequiring a will to be 'signed' is satisfied if the signature is made bythe testator's mark. (28 R. C. L., pp. 116-117).

The opinion quoted is exactly in point. The testatrix thumb-mark appears inthe center of her name as written by Serapia de Gala on all of the pages ofthe will.

The second and third points raised by Sinforoso Ona and ApolinarioGonzales are sufficiently refuted by quoting the last clause of the body ofthe will together with the attestation clause, both of which are written in theTagalog dialect. These clauses read as follows:

Sa katunayang ang kasulatang ito, na may anim na dahon, ay siyangnaglalaman ng aking huling tagubilin, at sa hindi ko kaalamanglumagda ng aking pangalan, ipinamanhik ko sa aking pamankin na siSerapia de Gala na isulat ang aking pangalan at apellido, at sa tapat

ay inilagda ko ang titik ng kanang daliri kong hinlalaki, sa walkas atsa bawat isa sa anim (6) na dahon ng kasulatang ito, at ito's ginawaniya sa kautusan at sa harap ko at ng tatlong saksing nagpapatutuosa 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 sakahilingan ni Severina Gonzales sa wakas at sa mga gilid ng bawa'tisa sa anim (6) na dahon at isinaysay na ang kasulatang ito ay siyanghuling habilin o testamento ni Severina Gonzales, ay pinirmahannamin, bilang mga saksi sa wakas at sa gilid ng bawa't dahon saharap at sa kahilingan ng tinurang testadora, at ang bawat isa saamin ay pumirma sa harap ng lahat at bawat isa sa amin, ngayon ikadalawang po't tatlo ng noviembre ng taong 1920 ng taong 1920.


5/131

(Sgd.) ELEUTERIO NATIVIDADJUAN SUMULONGFRANCISCO NATIVIDAD

The translation in English of the clauses quoted reads as follows:

In virtue of this will, consisting of six pages, that contains my lastwish, and because of the fact that I cannot sign my name, I requestmy niece Serapia de Gala to write my name, and above this I placedmy right thumb-mark at the end of this will and to each of the sixpages of this document, and this was done at my direction and in thepresence of three attesting witnesses, this 23rd of November, 1920.

(Sgd.) SEVERINA GONZALES

We certify that this document, which is composed of six (6) sheetsand was signed in our presence by Serapia de Gala at the request ofSeverina 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 ofSeverina Gonzales, was signed by us as witnesses at the end and onthe margins of each sheet in the presence and at the request of saidtestatrix, 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 NATIVIDADJUAN SUMULONGFRANCISCO NATIVIDAD

As will be seen, it is not mentioned in the attestation clause that thetestatrix signed by thumb-mark, but it does there appear that the signaturewas affixed in the presence of the witnesses, and the form of the signatureis sufficiently described and explained in the last clause of the body of thewill. It maybe conceded that the attestation clause is not artistically drawnand 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, itis fairly clear and sufficiently carries out the legislative intent; it leaves nopossible doubt as to the authenticity of the document.

The contention of the appellants Sinforoso Ona and Apolinario Gonzalesthat the fact that the will had been signed in the presence of the witnesses


6/131

was not stated in the attestation clause is without merit; the fact isexpressly stated in that clause.

In our opinion, the will is valid, and the orders appealed from are herebyaffirmed without costs. So ordered.

Johnson, Street, Malcolm, Johns, Romualdez and Villa-Real, JJ., concur.


7/131

G.R. NO. 147145, January 31, 2005 ]

10. TESTATE ESTATE OF THE LATE ALIPIO ABADA,BELINDA CAPONONG-NOBLE, PETITIONER, VS. ALIPIOABAJA AND NOEL ABELLAR, RESPONDENTS.

DECISION

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 theRegional Trial Court of Kabankalan, Negros Occidental, Branch 61(RTC-Kabankalan), admitting to probate the last will andtestament 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 withoutlegitimate children.

On 13 September 1968, Alipio C. Abaja (Alipio) filed with thethen Court of First Instance of Negros Occidental (now RTC-Kabankalan) a petition,[5] docketed as SP No. 070 (313-8668), forthe probate of the last will and testament (will) of Abada.

Abada allegedly named as his testamentary heirs his naturalchildren Eulogio Abaja (Eulogio) and Rosario Cordova. Alipio isthe son of Eulogio.

Nicanor Caponong (Caponong) opposed the petition on theground that Abada left no will when he died in 1940. Caponongfurther alleged that the will, if Abada really executed it, should be


8/131

disallowed for the following reasons: (1) it was not executed andattested as required by law; (2) it was not intended as the lastwill of the testator; and (3) it was procured by undue andimproper pressure and influence on the part of the beneficiaries.

Citing the same grounds invoked by Caponong, the allegedintestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline,Geronimo, Humberto, Teodora and Elena Abada (Joel Abada, etal.), and Levi, Leandro, Antonio, Florian, Hernani and CarmelaTronco (Levi Tronco, et al.), also opposed the petition. Theoppositors are the nephews, nieces and grandchildren of Abadaand Toray.

On 13 September 1968, Alipio filed another petition[6] before the

RTC-Kabankalan, docketed as SP No. 071 (312-8669), for theprobate of the last will and testament of Toray. Caponong, JoelAbada, et al., and Levi Tronco, et al. opposed the petition on thesame grounds they cited in SP No. 070 (313-8668).

On 20 September 1968, Caponong filed a petition[7] before theRTC-Kabankalan, docketed as SP No. 069 (309), praying for theissuance in his name of letters of administration of the intestateestate of Abada and Toray.

In an Order dated 14 August 1981, the RTC-Kabankalan admittedto probate the will of Toray. Since the oppositors did not file anymotion for reconsideration, the order allowing the probate ofTorays will became final and executory.[8]

In an order dated 23 November 1990, the RTC-Kabankalandesignated Belinda Caponong-Noble (Caponong-Noble) SpecialAdministratrix of the estate of Abada and Toray.[9] Caponong-

Noble moved for the dismissal of the petition for probate of thewill of Abada. The RTC-Kabankalan denied the motion in anOrder dated 20 August 1991.[10]

Sometime in 1993, during the proceedings, Presiding JudgeRodolfo S. Layumas discovered that in an Order dated 16 March1992, former Presiding Judge Edgardo Catilo had already


9/131

submitted the case for decision. Thus, the RTC-Kabankalanrendered a Resolution dated 22 June 1994, as follows:There having been sufficient notice to the heirs as required bylaw; that there is substantial compliance with the formalities of a

Will as the law directs and that the petitioner through histestimony and the deposition of Felix Gallinero was able toestablish the regularity of the execution of the said Will andfurther, there being no evidence of bad faith and fraud, orsubstitution of the said Will, the Last Will and Testament of AlipioAbada dated June 4, 1932 is admitted and allowed probate.

As prayed for by counsel, Noel Abbellar[11] is appointedadministrator of the estate of Paula Toray who shall discharge his

duties as such after letters of administration shall have beenissued in his favor and after taking his oath and filing a bond inthe amount of Ten Thousand (P10,000.00) Pesos.

Mrs. Belinda C. Noble, the present administratrix of the estate ofAlipio Abada shall continue discharging her duties as such untilfurther orders from this Court.

SO ORDERED.[12]

The RTC-Kabankalan ruled on the only issue raised by theoppositors in their motions to dismiss the petition for probate,that is, whether the will of Abada has an attestation clause asrequired by law. The RTC-Kabankalan further held that thefailure of the oppositors to raise any other matter forecloses allother issues.

Not satisfied with the Resolution, Caponong-Noble filed a noticeof appeal.

In a Decision promulgated on 12 January 2001, the Court ofAppeals affirmed the Resolution of the RTC-Kabankalan. Theappellate court found that the RTC-Kabankalan properly admittedto probate the will of Abada.

Hence, the present recourse by Caponong-Noble.


10/131

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 ina language or dialect known to the testator;

4.Whether the will of Abada has an attestation clause, and ifso, 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 languageknown to Abada;

6.Whether evidence aliunde may be resorted to in theprobate 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 thattime 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 attestationclause in the will of Abada. Section 618 of the Code of CivilProcedure, as amended by Act No. 2645,[15] governs the form ofthe attestation clause of Abadas will.[16] Section 618 of the Codeof Civil Procedure, as amended, provides:


11/131

SEC. 618. Requisites of will. No will, except as provided in thepreceding section,[17] shall be valid to pass any estate, real orpersonal, nor charge or affect the same, unless it be written inthe language or dialect known by the testator and signed by him,

or by the testators name written by some other person in hispresence, and by his express direction, and attested andsubscribed by three or more credible witnesses in the presence ofthe testator and of each other. The testator or the personrequested by him to write his name and the instrumentalwitnesses of the will, shall also sign, as aforesaid, each and everypage thereof, on the left margin, and said pages shall benumbered correlatively in letters placed on the upper part of eachsheet. The attestation shall state the number of sheets or pages

used, upon which the will is written, and the fact that the testatorsigned the will and every page thereof, or caused some otherperson to write his name, under his express direction, in thepresence of three witnesses, and the latter witnessed and signedthe will and all pages thereof in the presence of the testator andof 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 bythe testator;

(2) The will must be signed by the testator, or by the testatorsname written by some other person in his presence, and by hisexpress direction;

(3) The will must be attested and subscribed by three or more

credible witnesses in the presence of the testator and of eachother;

(4) The testator or the person requested by him to write hisname and the instrumental witnesses of the will must sign eachand every page of the will on the left margin;


12/131

(5) The pages of the will must be numbered correlatively inletters placed on the upper part of each sheet;

(6) The attestation shall state the number of sheets or pages

used, upon which the will is written, and the fact that the testatorsigned the will and every page of the will, or caused some otherperson to write his name, under his express direction, in thepresence of three witnesses, and the witnesses witnessed andsigned the will and all pages of the will in the presence of thetestator and of each other.Caponong-Noble asserts that the will of Abada does not indicatethat 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 theOld 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 publicby the testator and the witnesses. xxx[18]Caponong-Noble actually cited Articles 804 and 806 of the NewCivil 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 theCode of Civil Procedure.[20] Article 806 of the New Civil Code istaken from Article 685 of the Old Civil Code[21] which provides:Art. 685. The notary and two of the witnesses who authenticatethe will must be acquainted with the testator, or, should they not

know him, he shall be identified by two witnesses who areacquainted with him and are known to the notary and to theattesting witnesses. The notary and the witnesses shall alsoendeavor 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


13/131

notary, in cases falling under Articles 700 and 701, are alsorequired to know the testator.However, the Code of Civil Procedure[22] repealed Article 685 ofthe Old Civil Code. Under the Code of Civil Procedure, the

intervention of a notary is not necessary in the execution ofanywill.[23]Therefore, Abadas will does not require acknowledgmentbefore a notary public.

Caponong-Noble points out that nowhere in the will can onediscern that Abada knew the Spanish language. She alleges thatsuch defect is fatal and must result in the disallowance of thewill. On this issue, the Court of Appeals held that the matter wasnot raised in the motion to dismiss, and that it is now too late to

raise the issue on appeal. We agree with Caponong-Noble thatthe doctrine of estoppel does not apply in probate proceedings.[24]In addition, the language used in the will is part of the requisitesunder Section 618 of the Code of Civil Procedure and the Courtdeems it proper to pass upon this issue.

Nevertheless, Caponong-Nobles contention must still fail. Thereis no statutory requirement to state in the will itself that thetestator 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 thecontents 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 andhis companions would talk in the Spanish language.[27] Thissufficiently 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 ultimavoluntad y testamento en presencia de nosotros, habiendotambien el testador firmado en nuestra presencia en el margen


14/131

izquierdo de todas y cada una de las hojas del mismo. Y entestimonio de ello, cada uno de nosotros lo firmamos enpresencia de nosotros y del testador al pie de este documento yen el margen izquierdo de todas y cada una de las dos hojas de

que esta compuesto el mismo, las cuales estan paginadascorrelativamente con las letras UNO y DOS en la partesuperior de la carrilla.[28]Caponong-Noble proceeds to point out several defects in theattestation clause. Caponong-Noble alleges that the attestationclause fails to state the number of pages on which the will iswritten.

The allegation has no merit. The phrase en el margen izquierdo

de todas y cada una de las dos hojas de que esta compuesto elmismo which means in the left margin of each and every one ofthe two pages consisting of the sameshows that the will consistsof two pages. The pages are numbered correlatively with theletters ONE and TWO as can be gleaned from the phrase lascuales estan paginadas correlativamente con las letras UNO yDOS.

Caponong-Noble further alleges that the attestation clause fails to

state expressly that the testator signed the will and its everypage in the presence of three witnesses. She then faults theCourt of Appeals for applying to the present case the rule onsubstantial compliance found in Article 809 of the New CivilCode.[29]

The first sentence of the attestation clause reads: Suscrito ydeclarado por el testador Alipio Abada como su ultima voluntad ytestamento en presencia de nosotros, habiendo tambien el

testador firmado en nuestra presencia en el margen izquierdo detodas y cada una de las hojas del mismo. The Englishtranslation is: Subscribed and professed by the testator AlipioAbada as his last will and testament in our presence, the testatorhaving also signed it in our presence on the left margin of eachand every one of the pages of the same. The attestationclause clearly states that Abada signed the will and its every page


15/131

in the presence of the witnesses.

However, Caponong-Noble is correct in saying that the attestationclause does not indicate the number of witnesses. On this point,

the Court agrees with the appellate court in applying the rule onsubstantial compliance in determining the number of witnesses.While the attestation clause does not state the number ofwitnesses, a close inspection of the will shows that threewitnesses signed it.

This Court has applied the rule on substantial compliance evenbefore the effectivity of the New Civil Code. In Dichoso deTicson v. De Gorostiza,[30] the Court recognized that there are

two divergent tendencies in the law on wills, one being based onstrict construction and the other on liberal construction. InDichoso, the Court noted thatAbangan v. Abangan,[31] the basiccase on the liberal construction, is cited with approval in laterdecisions of the Court.

InAdeva vda. De Leynez v. Leynez,[32] the petitioner, arguingfor liberal construction of applicable laws, enumerated a long lineof cases to support her argument while the respondent,

contending that the rule on strict construction should apply, alsocited a long series of cases to support his view. The Court, afterexamining 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. Morethan anything else, the facts and circumstances of record are tobe considered in the application of any given rule. If thesurrounding circumstances point to a regular execution of thewill, and the instrument appears to have been executed

substantially in accordance with the requirements of the law, theinclination should, in the absence of any suggestion of bad faith,forgery or fraud, lean towards its admission to probate, althoughthe document may suffer from some imperfection of language, orother non-essential defect. x x x.

An attestation clause is made for the purpose of preserving, in


16/131

permanent form, a record of the facts attending the execution ofthe will, so that in case of failure of the memory of thesubscribing witnesses, or other casualty, they may still beproved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore,

should not be rejected where its attestation clause serves thepurpose of the law. x x x [33]We rule to apply the liberal construction in the probate of Abadaswill. Abadas will clearly shows four signatures: that of Abadaand of three other persons. It is reasonable to conclude thatthere are three witnesses to the will. The question on thenumber of the witnesses is answered by an examination of thewill itself and without the need for presentation of evidencealiunde. 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 laterdecisions do tell us when and where to stop; they draw thedividing line with precision. They do not allow evidencealiunde to fill a void in any part of the document or supplymissing details that should appear in the will itself. Theyonly permit a probe into the will, an exploration within itsconfines, 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 tobanish any fear of dire results.[34] (Emphasis supplied)The phrase en presencia de nosotros or in our presencecoupled with the signatures appearing on the will itself and afterthe attestation clause could only mean that: (1) Abadasubscribed to and professed before the three witnesses that thedocument was his last will, and (2) Abada signed the will and theleft margin of each page of the will in the presence of these three

witnesses.

Finally, Caponong-Noble alleges that the attestation clause doesnot expressly state the circumstances that the witnesseswitnessed and signed the will and all its pages in the presenceof the testator and of each other. This Court has ruled:


17/131

Precision of language in the drafting of an attestation clause isdesirable. However, it is not imperative that a parrot-like copy ofthe words of the statute be made. It is sufficient if from thelanguage employed it can reasonably be deduced that the

attestation clause fulfills what the law expects of it.[35]

The last part of the attestation clause states en testimonio deello, cada uno de nosotros lo firmamos en presencia de nosotrosy del testador. In English, this means in its witness, every oneof us also signed in our presence and of the testator. Thisclearly shows that the attesting witnesses witnessed the signingof the will of the testator, and that each witness signed the will inthe presence of one another and of the testator.

WHEREFORE, we AFFIRM the Decision of the Court of Appealsof 12 January 2001 in CA-G.R. CV No. 47644.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, andAzcuna, JJ., concur.

[1] Under Rule 45 of the 1997 Rules of Civil Procedure.

[2] Penned by Associate Justice Presbitero J. Velasco, Jr. (nowCourt Administrator) with Associate Justices Ruben T. Reyes andJuan Q. Enriquez, Jr., concurring.

[3] Penned by Presiding Judge Rodolfo S. Layumas.

[4] Alipio C. Abaja tried to secure a copy of Abadas death

certificate but the Local Civil Registrar of Cawayan, NegrosOccidental informed him that all the records of pre-war deathswere destroyed during the war.

[5] In the matter of the Probate of the Last Will and Testament ofthe late Alipio Abada.


18/131

[6] In the matter of the Probate of the Last Will and Testament ofthe late Paula Toray.

[7]

In the matter of the Intestate Estate of Spouses Alipio Abadaand Paula Toray. Petition for Letters of Administration.

[8] Records, p. 38.

[9]Ibid., p. 41.

[10]Ibid., pp. 42-45.

[11]

It should be Abellar.[12] Rollo, p. 47.

[13] Petitioner phrases this issue as to whether the will has to benotarized. A notarized document includes one that is subscribedand sworn under oath or one that contains a jurat.Acknowledgment is different. Acknowledgment refers to an act inwhich an individual on a single occasion: (a) appears in person

before the notary public and presents an integrally completeinstrument or document; (b) is attested to be personally knownto the notary public or identified by the notary public throughcompetent evidence of identity as defined by these Rules; and (c)represents to the notary public that the signature on theinstrument or document was voluntarily affixed by him for thepurposes stated in the instrument or document, declares that hehas executed the instrument or document as his free andvoluntary act and deed, and, if he acts in a particular

representative capacity, that he has the authority to sign in thatcapacity. (See Section 1, Rule II of 2004 Rules of NotarialPractice)

[14] The Code of Civil Procedure took effect on 1 September 1901.

[15] An Act amending section six hundred and eighteen of Act


19/131

Numbered One hundred and ninety, entitled An Act providing ACode of Procedure in Civil Actions and Special Proceedings in thePhilippine Islands, prescribing additional requirement in theexecution of wills. It took effect on 1 July 1916.

[16] The validity of the execution of a will is governed by thestatutes in the force at the time of its execution (In re will ofRiosa, 39 Phil. 23 [1918]). Article 795 of the New Civil Codeprovides: The validity of a will as to its form depends upon theobservance of the law in force at the time it is made.

[17] Section 617 governs wills executed by a Spaniard or aresident of the Philippine Islands before Act No. 190 came into

force on 1 September 1901.[18] Rollo, p. 151.

[19] The New Civil Code took effect on 30 August 1950.

[20] TOLENTINO, CIVIL CODE OF THE PHILIPPINES, 67 Vol. III(1998).

[21]

Ibid., p. 101.[22] FISHER, THE CIVIL CODE OF SPAIN, 198 (1921).

[23] Valera v. Purugganan, 4 Phil. 719 (1905).

[24]See Fernandez, et al. v. Dimagiba, 128 Phil. 450 (1967).

[25] Lopez v. Liboro, 81 Phil 429 (1948).

[26]Ibid.

[27] TSN, 26 October 1989, p. 74.

[28]Exhibit A, Folder.


20/131

[29] Article 809 of the New Civil Code provides:

Art. 809. In the absence of bad faith, forgery, or fraud, or undueand improper pressure and influence, defects and imperfections

in the form of attestation or in the language used therein shallnot render the will invalid if it is proved that the will was in factexecuted and attested in substantial compliance with all therequirements of article 805.

[30] 57 Phil. 437 (1932).

[31] 40 Phil. 476 (1919).

[32]

68 Phil. 745 (1939).[33]Ibid.

[34] Gil v. Murciano, Resolution on the Motion for Reconsideration,dated 20 March 1953, 88 Phil. 260 (1951). See also Caneda v.Court of Appeals, G.R. No. 103554, 28 May 1993, 222 SCRA 781,where the Court explained the extent and limits of Article 809 ofthe New Civil Code.

[35] Dichoso de Ticson v. De Gorostiza, supra, see note 31.


21/131

G.R. NO. 122880, April 12, 2006 ]

11. FELIX AZUELA, PETITIONER, VS. COURT OF APPEALS,GERALDA AIDA CASTILLO SUBSTITUTED BY ERNESTO G.CASTILLO, RESPONDENTS.

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


22/131

on 16 December 1982 at the age of 80. In refusing to give legalrecognition to the due execution of this document, the Court isprovided the opportunity to assert a few important doctrinal rulesin 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 thenumber of pages on which the will is written is fatallydefective. A will whose attestation clause is not signed bythe instrumental witnesses is fatally defective. Andperhaps most importantly, a will which does not contain anacknowledgment, but a mere jurat, is fatally defective. Anyone of these defects is sufficient to deny probate. A

notarial will with all three defects is just aching for judicialrejection.

There is a distinct and consequential reason the Civil Codeprovides a comprehensive catalog of imperatives for the properexecution of a notarial will. Full and faithful compliance with allthe detailed requisites under Article 805 of the Code leave littleroom for doubt as to the validity in the due execution of thenotarial will. Article 806 likewise imposes another safeguard to

the validity of notarial wills - that they be acknowledged before anotary public by the testator and the witnesses. A notarial willexecuted with indifference to these two codal provisions opensitself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984with the Regional Trial Court (RTC) of Manila. The petition filed bypetitioner Felix Azuela sought to admit to probate the notarial willof 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 vernacularPilipino, read in full:HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:


23/131

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St.,Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustongpagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang

aking huling habilin at testamento, at binabali wala ko lahat angnaunang ginawang habilin o testamento:

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, LaLoma sang-ayong sa kaugalian at patakaran ng simbahangkatoliko at ang taga-pag-ingat (Executor) ng habiling ito aymagtatayo ng bantayog upang silbing ala-ala sa akin ng akingpamilya at kaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ngkarapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay nanakatirik sa lote numero 28, Block 24 at nakapangalan saPechaten Korporasyon, ganoon din ibinibigay ko ang lahat ngkarapatan sa bahay na nakatirik sa inoopahan kong lote, numero43, Block 24 na pag-aari ng Pechaten Corporation.Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahayat lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc,

Manila kay Felix Azuela at ang pagkakaloob kong ito ay walangpasubali't at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyangnagpapatupad ng huling habiling ito at kagustuhan ko rin na hindina kailanman siyang mag-lagak ng piyansiya.

Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10ng Hunyo, 1981.

(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)

PATUNAY NG MGA SAKSI


24/131

Ang kasulatang ito, na binubuo ng ____ dahon pati ang hulingdahong 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 ngkasulatang nabanggit at sa kaliwang panig ng lahat at bawa'tdahon, sa harap ng lahat at bawa't sa amin, at kami namang mgasaksi ay lumagda sa harap ng nasabing tagapagmana at sa harapng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan atsa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito.

EUGENIA E. IGSOLOaddress: 500 San Diego St.

Sampaloc, Manila Res. Cert. No. A-7717-37Issued at Manila on March 10, 1981.

QUIRINO AGRAVAaddress: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued 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, Caviteon Feb. 7, 1981

JUANITO ESTRERAaddress: City Court Compound,City of Manila Res. Cert. No. A574829Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 ditosa Lungsod ng Maynila.

(Sgd.)PETRONIO Y. BAUTISTADoc. No. 1232 ; bsp; & NOTARIO PUBLIKO


25/131

Page No. 86 ; Until Dec. 31, 1981Book No. 43 ; PTR-152041-1/2/81-ManilaSeries 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 thebottom of the attestation clause.

The probate petition adverted to only two (2) heirs, legatees anddevisees of the decedent, namely: petitioner himself, and oneIrene Lynn Igsolo, who was alleged to have resided abroad.Petitioner prayed that the will be allowed, and that letterstestamentary be issued to the designated executor, Vart Prague.

The petition was opposed by Geralda Aida Castillo (GeraldaCastillo), who represented herself as the attorney-in-fact of "the12 legitimate heirs" of the decedent.[2] Geralda Castillo claimedthat the will is a forgery, and that the true purpose of itsemergence was so it could be utilized as a defense in severalcourt cases filed by oppositor against petitioner, particularly forforcible entry and usurpation of real property, all centering onpetitioner's right to occupy the properties of the decedent.[3] Italso asserted that contrary to the representations of petitioner,

the decedent was actually survived by 12 legitimate heirs, namelyher grandchildren, who were then residing abroad. Per records, itwas subsequently alleged that decedent was the widow ofBonifacio Igsolo, who died in 1965,[4] and the mother of alegitimate child, Asuncion E. Igsolo, who predeceased her motherby three (3) months.[5]

Oppositor Geralda Castillo also argued that the will was notexecuted and attested to in accordance with law. She pointed out

that decedent's signature did not appear on the second page ofthe will, and the will was not properly acknowledged. These twinarguments are among the central matters to this petition.

After due trial, the RTC admitted the will to probate, in an Orderdated 10 August 1992.[6] The RTC favorably took into account thetestimony of the three (3) witnesses to the will, Quirino Agrava,


26/131

Lamberto Leano, and Juanito Estrada. The RTC also called to fore"the modern tendency in respect to the formalities in theexecution of a will x x x with the end in view of giving the testatormore freedom in expressing his last wishes;"[7] and from this

perspective, rebutted oppositor's arguments that the will was notproperly executed and attested to in accordance with law.After a careful examination of the will and consideration of thetestimonies of the subscribing and attesting witnesses, andhaving in mind the modern tendency in respect to the formalitiesin the execution of a will, i.e., the liberalization of theinterpretation of the law on the formal requirements of a will withthe end in view of giving the testator more freedom in expressinghis last wishes, this Court is persuaded to rule that the will in

question is authentic and had been executed by the testatrix inaccordance with law.

On the issue of lack of acknowledgement, this Court has notedthat at the end of the will after the signature of the testatrix, thefollowing statement is made under the sub-title, "Patunay Ng MgaSaksi":"Ang kasulatang ito, na binubuo ng _____ dahon pati ang hulingdahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,

tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ngHunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ngkasulatang nabanggit at sa kaliwang panig ng lahat at bawa'tdahon, sa harap ng lahat at bawa't sa amin, at kami namang mgasaksi ay lumagda sa harap ng nasabing tagapagmana at sa harapng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan atsa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito."The aforequoted declaration comprises the attestation clause andthe acknowledgement and is considered by this Court as a

substantial compliance with the requirements of the law.

On the oppositor's contention that the attestation clause was notsigned by the subscribing witnesses at the bottom thereof, thisCourt is of the view that the signing by the subscribing witnesseson the left margin of the second page of the will containing theattestation clause and acknowledgment, instead of at the bottom


27/131

thereof, substantially satisfies the purpose of identification andattestation of the will.

With regard to the oppositor's argument that the will was not

numbered correlatively in letters placed on upper part of eachpage and that the attestation did not state the number of pagesthereof, it is worthy to note that the will is composed of only twopages. The first page contains the entire text of the testamentarydispositions, and the second page contains the last portion of theattestation clause and acknowledgement. Such being so, thedefects are not of a serious nature as to invalidate the will. Forthe same reason, the failure of the testatrix to affix her signatureon the left margin of the second page, which contains only the

last portion of the attestation clause and acknowledgment is not afatal defect.

As regards the oppositor's assertion that the signature of thetestatrix on the will is a forgery, the testimonies of the threesubscribing witnesses to the will are convincing enough toestablish the genuineness of the signature of the testatrix and thedue 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 Courtof Appeals reversed the trial court and ordered the dismissal ofthe petition for probate.[9] The Court of Appeals noted that theattestation clause failed to state the number of pages used in thewill, thus rendering the will void and undeserving of probate.[10]

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of theCivil Code that "the number of pages used in a notarial will bestated in the attestation clause" is merely directory, rather thanmandatory, and thus susceptible to what he termed as "thesubstantial compliance rule."[11]


28/131

The solution to this case calls for the application of Articles 805and 806 of the Civil Code, which we replicate in full.Art. 805. Every will, other than a holographic will, must besubscribed 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 bythree or more credible witnesses in the presence of the testatorand of one another.

The testator or the person requested by him to write his nameand the instrumental witnesses of the will, shall also sign, asaforesaid, each and every page thereof, except the last, on theleft 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 whichthe will is written, and the fact that the testator signed the willand every page thereof, or caused some other person to write hisname, under his express direction, in the presence of theinstrumental witnesses, and that the latter witnessed and signedthe will and all the pages thereof in the presence of the testatorand of one another.

If the attestation clause is in a language not known to thewitnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary publicby the testator and the witnesses. The notary public shall not berequired to retain a copy of the will, or file another with the officeof 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 pagesof the will. But an examination of the will itself reveals severalmore deficiencies.

As admitted by petitioner himself, the attestation clause fails tostate the number of pages of the will.[12] There was an incompleteattempt to comply with this requisite, a space having been


29/131

allotted for the insertion of the number of pages in the attestationclause. Yet the blank was never filled in; hence, the requisite wasleft uncomplied with.

The Court of Appeals pounced on this defect in reversing the trialcourt, citing in the process Uy Coque v. Navas L. Sioca[13] and Inre: Will of Andrada.[14] In Uy Coque, the Court noted that amongthe defects of the will in question was the failure of theattestation clause to state the number of pages contained in thewill.[15] In ruling that the will could not be admitted to probate,the Court made the following consideration which remains highlyrelevant to this day: "The purpose of requiring the number ofsheets to be stated in the attestation clause is obvious; the

document might easily be so prepared that the removal ofa sheet would completely change the testamentarydispositions of the will and in the absence of a statementof the total number of sheets such removal might beeffected by taking out the sheet and changing the numbersat the top of the following sheets or pages. If, on the otherhand, the total number of sheets is stated in the attestationclause the falsification of the document will involve the insertingof new pages and the forging of the signatures of the testator and

witnesses in the margin, a matter attended with much greaterdifficulty."[16]

The case ofIn re Will of Andrada concerned a will the attestationclause of which failed to state the number of sheets or pagesused. This consideration alone was sufficient for the Court todeclare "unanim[ity] upon the point that the defect pointed out inthe attesting clause is fatal."[17] It was further observed that "itcannot 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 probateto the wills concerned therein despite the fact that the attestation


30/131

clause did not state the number of pages of the will. Yet theappellate court itself considered the import of these two cases,and made the following distinction which petitioner is unable torebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readilyshow that the attestation does not state the number of pagesused upon which the will is written. Hence, the Will is void andundeserving of probate.

We are not impervious of the Decisions of the Supreme Court in"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 andApolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA195," to the effect that a will may still be valid even if the

attestation does not contain the number of pages used uponwhich the Will is written. However, the Decisions of the SupremeCourt are not applicable in the aforementioned appeal at bench.This is so because, in the case of "Manuel Singson versus EmiliaFlorentino, et al., supra," although the attestation in the subjectWill 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 xThe law referred to is article 618 of the Code of Civil Procedure,as amended by Act No. 2645, which requires that the attestationclause shall state the number of pages or sheets upon which thewill is written, which requirement has been held to be mandatoryas an effective safeguard against the possibility of interpolation oromission of some of the pages of the will to the prejudice of theheirs to whom the property is intended to be bequeathed (In reWill of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata,

54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratiodecidendi of these cases seems to be that the attestation clausemust contain a statement of the number of sheets or pagescomposing the will and that if this is missing or is omitted, it willhave the effect of invalidating the will if the deficiency cannot besupplied, not by evidence aliunde, but by a consideration orexamination of the will itself. But here the situation is different.


31/131

While the attestation clause does not state the number of sheetsor pages upon which the will is written, however, the last part ofthe body of the will contains a statement that it is composed ofeight pages, which circumstance in our opinion takes this case

out of the rigid rule of construction and places it within the realmof similar cases where a broad and more liberal view has beenadopted to prevent the will of the testator from being defeated bypurely 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 ofpages used in the:"x x x

We have examined the will in question and noticed that theattestation clause failed to state the number of pages used inwriting the will. This would have been a fatal defect were it notfor the fact that, in this case, it is discernible from the entire willthat it is really and actually composed of only two pages dulysigned by the testatrix and her instrumental witnesses. As earlierstated, the first page which contains the entirety of thetestamentary dispositions is signed by the testatrix at the end or

at the bottom while the instrumental witnesses signed at the leftmargin. The other page which is marked as "Pagina dos"comprises the attestation clause and the acknowledgment. Theacknowledgment itself states that "this Last Will and Testamentconsists of two pages including this page" (pages 200-201, supra)(Underscoring supplied).However, in the appeal at bench, the number of pages used inthe will is not stated in any part of the Will. The will does noteven contain any notarial acknowledgment wherein the number

of pages of the will should be stated.[21]

Both Uy Coque andAndrada were decided prior to the enactmentof the Civil Code in 1950, at a time when the statutory provisiongoverning the formal requirement of wills was Section 618 of theCode of Civil Procedure.[22] Reliance on these cases remainsapropos, considering that the requirement that the attestationstate the number of pages of the will is extant from Section


32/131

618.[23] However, the enactment of the Civil Code in 1950 did putin force a rule of interpretation of the requirements of wills, atleast insofar as the attestation clause is concerned, that may varyfrom the philosophy that governed these two cases. Article 809 of

the Civil Code states: "In the absence of bad faith, forgery, orfraud, or undue and improper pressure and influence, defects andimperfections in the form of attestation or in the language usedtherein shall not render the will invalid if it is proved that the willwas in fact executed and attested in substantial compliance withall the requirements of article 805."

In the same vein, petitioner cites the report of the Civil CodeCommission, which stated that "the underlying and fundamental

objective permeating the provisions on the [law] on [wills] in thisproject consists in the [liberalization] of the manner of theirexecution with the end in view of giving the testator more[freedom] in [expressing] his last wishes. This objective is inaccord with the [modern tendency] in respect to the formalities inthe execution of wills."[24] However, petitioner conveniently omitsthe qualification offered by the Code Commission in the verysame paragraph he cites from their report, that such liberalizationbe "but with sufficient safeguards and restrictions to prevent the

commission of fraud and the exercise of undue and improperpressure and influence upon the testator."[25]

Caneda v. Court of Appeals[26] features an extensive discussionmade by Justice Regalado, speaking for the Court on theconflicting views on the manner of interpretation of the legalformalities required in the execution of the attestation clause inwills.[27]Uy Coque and Andrada are cited therein, along withseveral other cases, as examples of the application of the rule of

strict construction.[28]

However, the Code Commission opted torecommend a more liberal construction through the "substantialcompliance rule" under Article 809. A cautionary note was struckthough by Justice J.B.L. Reyes as to how Article 809 should beapplied:x x x The rule must be limited to disregarding those defects thatcan be supplied by an examination of the will itself: whether all


33/131

the pages are consecutively numbered; whether the signaturesappear in each and every page; whether the subscribingwitnesses are three or the will was notarized. All these are factsthat the will itself can reveal, and defects or even omissions

concerning them in the attestation clause can be safelydisregarded. But the total number of pages, and whether allpersons required to sign did so in the presence of eachother must substantially appear in the attestation clause,being the only check against perjury in the probateproceedings.[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 statethe 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 attestationclause failed to state that the witnesses subscribed theirrespective signatures to the will in the presence of the testatorand 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 itnow stands, is that omission which can be supplied by an

examination of the will itself, without the need of resorting toextrinsic evidence, will not be fatal and, correspondingly, wouldnot obstruct the allowance to probate of the will being assailed.However, those omissions which cannot be supplied except byevidence aliunde would result in the invalidation of the attestationclause and ultimately, of the will itself."[31] Thus, a failure by theattestation clause to state that the testator signed every page canbe liberally construed, since that fact can be checked by a visualexamination; while a failure by the attestation clause to state that

the witnesses signed in one another's presence should beconsidered a fatal flaw since the attestation is the only textualguarantee of compliance.[32]

The failure of the attestation clause to state the number of pageson which the will was written remains a fatal flaw, despite Article809. The purpose of the law in requiring the clause to state the


34/131

number of pages on which the will is written is to safeguardagainst possible interpolation or omission of one or some of itspages 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 witnessesas to how many pages consisted the will, the execution of whichthey had ostensibly just witnessed and subscribed to. FollowingCaneda, there is substantial compliance with this requirement ifthe will states elsewhere in it how many pages it is comprised of,as was the situation in Singson and Taboada. However, in thiscase, there could have been no substantial compliance with therequirements under Article 805 since there is no statement in theattestation 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 tocomply with the formal requirements as enumerated under Article805. Whatever the inclinations of the members of the CodeCommission in incorporating Article 805, the fact remains thatthey saw fit to prescribe substantially the same formal requisitesas 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 theserequirements, however picayune in impression, affords the publica high degree of comfort that the testator himself or herself haddecided to convey propertypostmortem in the mannerestablished in the will.[35]The transcendent legislative intent,even as expressed in the cited comments of the CodeCommission, is for the fruition of the testator'sincontestable desires, and not for the indulgent admissionof 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 ofeven more critical defects that should necessarily lead to itsrejection.

For one, the attestation clause was not signed by the


35/131

instrumental witnesses. While the signatures of theinstrumental witnesses appear on the left-hand margin of the will,they do not appear at the bottom of the attestation clause whichafter all consists of their averments before the notary public.

Cagro v. Cagro[36] is material on this point. As in this case, "thesignatures of the three witnesses to the will do not appear at thebottom of the attestation clause, although the page containingthe same is signed by the witnesses on the left-hand margin."[37]While three (3) Justices[38] considered the signature requirementhad been substantially complied with, a majority of six (6),speaking through Chief Justice Paras, ruled that the attestationclause had not been duly signed, rendering the will fatally

defective.There is no question that the signatures of the three witnesses tothe will do not appear at the bottom of the attestation clause,although the page containing the same is signed by the witnesseson the left-hand margin.

We are of the opinion that the position taken by the appellant iscorrect. The attestation clause is "a memorandum of the factsattending the execution of the will" required by law to be made

by the attesting witnesses, and it must necessarily bear theirsignatures. An unsigned attestation clause cannot be consideredas an act of the witnesses, since the omission of their signaturesat the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the threewitnesses on the left-hand margin conform substantially to thelaw and may be deemed as their signatures to the attestationclause. This is untenable, because said signatures are in

compliance with the legal mandate that the will be signed on theleft-hand margin of all its pages. If an attestation clause notsigned by the three witnesses at the bottom thereof, be admittedas sufficient, it would be easy to add such clause to a will on asubsequent occasion and in the absence of the testator and anyor all of the witnesses.[39]


36/131

The Court today reiterates the continued efficacy ofCagro. Article805 particularly segregates the requirement that the instrumentalwitnesses sign each page of the will, from the requisite that thewill be "attested and subscribed by [the instrumental witnesses]."

The respective intents behind these two classes of signature aredistinct from each other. The signatures on the left-hand cornerof every page signify, among others, that the witnesses areaware that the page they are signing forms part of the will. Onthe other hand, the signatures to the attestation clause establishthat the witnesses are referring to the statements contained inthe attestation clause itself. Indeed, the attestation clause isseparate and apart from the disposition of the will. An unsignedattestation clause results in an unattested will. Even if the

instrumental witnesses signed the left-hand margin of the pagecontaining the unsigned attestation clause, such signaturescannot demonstrate these witnesses' undertakings in the clause,since the signatures that do appear on the page were directedtowards a wholly different avowal.

The Court may be more charitably disposed had the witnesses inthis case signed the attestation clause itself, but not the left-handmargin of the page containing such clause. Without diminishing

the value of the instrumental witnesses' signatures on each andevery page, the fact must be noted that it is the attestationclause which contains the utterances reduced into writing of thetestamentary witnesses themselves. It is the witnesses, and notthe testator, who are required under Article 805 to state thenumber of pages used upon which the will is written; the fact thatthe testator had signed the will and every page thereof; and thatthey witnessed and signed the will and all the pages thereof inthe presence of the testator and of one another. The only proof in

the will that the witnesses have stated these elemental factswould be their signatures on the attestation clause.

Thus, the subject will cannot be considered to have been validlyattested to by the instrumental witnesses, as they failed to signthe attestation clause.


37/131

Yet, there is another fatal defect to the will on which the denial ofthis petition should also hinge. The requirement under Article 806that "every will must be acknowledged before a notary public bythe testator and the witnesses" has also not been complied with.

The importance of this requirement is highlighted by the fact thatit had been segregated from the other requirements under Article805 and entrusted into a separate provision, Article 806. Thenon-observance of Article 806 in this case is equally as critical asthe other cited flaws in compliance with Article 805, and shouldbe treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y.Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng

Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."[40]

By nomanner of contemplation can those words be construed as anacknowledgment. An acknowledgment is the act of one who hasexecuted a deed in going before some competent officer or courtand declaring it to be his act or deed.[41] It involves an extra stepundertaken whereby the signor actually declares to the notarythat the executor of a document has attested to the notary thatthe same is his/her own free act and deed.

It might be possible to construe the averment as ajurat, eventhough it does not hew to the usual language thereof. A jurat isthat part of an affidavit where the notary certifies that beforehim/her, the document was subscribed and sworn to by theexecutor.[42] Ordinarily, the language of thejuratshould avowthat the document was subscribed and sworn before the notarypublic, while in this case, the notary public averred that hehimself "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 thiscase would involve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as ajurat, the will would nonetheless remain invalid, as the expressrequirement of Article 806 is that the will be "acknowledged", andnot merely subscribed and sworn to. The will does not present


38/131

any textual proof, much less one under oath, that the decedentand the instrumental witnesses executed or signed the will astheir own free act or deed. The acknowledgment made in a willprovides for another all-important legal safeguard against

spurious wills or those made beyond the free consent of thetestator. An acknowledgement is not an empty meaninglessact.[43] The acknowledgment coerces the testator and theinstrumental witnesses to declare before an officer of the law thatthey had executed and subscribed to the will as their own free actor deed. Such declaration is under oath and under pain ofperjury, thus allowing for the criminal prosecution of persons whoparticipate in the execution of spurious wills, or those executedwithout the free consent of the testator. It also provides a further

degree of assurance that the testator is of certain mindset inmaking the testamentary dispositions to those persons he/shehad 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 notacknowledged before a notary public by the testator andthe witnesses is fatally defective, even if it is subscribedand sworn to before a notary public.

There are two other requirements under Article 805 which werenot fully satisfied by the will in question. We need not discussthem at length, as they are no longer material to the

disposition of this case. The provision requires that the testatorand the instrumental witnesses sign each and every page of thewill on the left margin, except the last; and that all the pagesshall be numbered correlatively in letters placed on the upper

part of each page. In this case, the decedent, unlike thewitnesses, failed to sign both pages of the will on the left margin,her only signature appearing at the so-called "logical end"[44] ofthe will on its first page. Also, the will itself is not numberedcorrelatively in letters on each page, but instead numbered withArabic numerals. There is a line of thought that has disabused thenotion that these two requirements be construed as


39/131

mandatory.[45] Taken in isolation, these omissions, bythemselves, may not be sufficient to deny probate to a will. Yeteven as these omissions are not decisive to the adjudication ofthis case, they need not be dwelt on, though indicative as they

may be of a general lack of due regard for the requirementsunder Article 805 by whoever executed the will.

All told, the string of mortal defects which the will in questionsuffers from makes the probate denial inexorable.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

Quisumbing, (Chairperson), Carpio, and Carpio-Morales, JJ.,concur.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION


40/131

12.G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,vs.HONORABLE COURT OF APPEALS and LUTGARDASANTIAGO, 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, FirstDivision,1 promulgated on May 4, 1973 in CA G.R. No. 36523-R whichreversed the decision of the Court of First Instance of Rizal datedDecember 15, 1964 and allowed the probate of the last will and testamentof the deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent LutgardaSantiago filed a petition with the Court of First Instance of Rizal docketedas Special Proceedings No. 3617, for the probate of a will alleged to have

been executed by the deceased Isabel Gabriel and designating thereinpetitioner as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel diedas a widow and without issue in the municipality of Navotas, province ofRizal 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 privaterespondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales arenieces of the deceased, and that private respondent, with her husband andchildren, 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 inTagalog, 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. Itconsists of five (5) pages, including the pages whereon the attestationclause and the acknowledgment of the notary public were written. The


41/131

signatures of the deceased Isabel Gabriel appear at the end of the will onpage 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 amingmga tinitirahan ay nakasulat sa gawing kanan at kahilira ngaming mga pangalan sa ibaba nito, ay pagpapatutuo naipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel naang kasulatang ito na binubuo ng Limang Dahon (Five Pages)pati na ang dahong ito, na siya niyang TESTAMENTO ATHULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaanng nasabing testadora na si Isabel Gabriel ang nasabing

testamento sa ibaba o ilalim ng kasulatan na nasa ika apat nadahon (page four) at nasa itaas ng patunay naming ito, at sakaliwang panig ng lahat at bawat dahon (and on the left handmargin of each and every page), sa harap ng lahat at bawat isasa amin, at kami namang mga saksi ay lumagda sa harap ngnasabing testadora, at sa harap ng lahat at bawat isa sa amin,sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahatat 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 respectiveplaces of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures alsoappear on the left margin of all the other pages. The WW is paged bytypewritten words as follows: "Unang Dahon" and underneath "(PageOne)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing atthe top of each page.

The will itself provides that the testatrix desired to be buried in the CatholicCemetery of Navotas, Rizal in accordance with the rites of the RomanCatholic Church, all expenses to be paid from her estate; that all herobligations, if any, be paid; that legacies in specified amounts be given toher sister, Praxides Gabriel Vda. de Santiago, her brother SantiagoGabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (hereinpetitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline,


42/131

Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamedSantiago. To herein private respondent Lutgarda Santiago, who wasdescribed in the will by the testatrix as "aking mahal na pamangkin naaking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"and named as universal heir and executor, were bequeathed all propertiesand estate, real or personal already acquired, or to be acquired, in hertestatrix name, after satisfying the expenses, debts and legacies asaforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,assailing the document purporting to be the will of the deceased on thefollowing grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required bylaw;

3. that, at the time of the alleged execution of the purported wiltthe decedent lacked testamentary capacity due to old age andsickness; and in the second alternative

4. That the purported WW was procured through undue andimproper 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 quorendered judgment, the summary and dispositiveportions of which read:

Passing in summary upon the grounds advanced by theoppositor, this Court finds:

1. That there is no iota of evidence to support the contention

that the purported will of the deceased was procured throughundue and improper pressure and influence on the part of thepetitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contentionthat at the time of the alleged execution of the purported will,


43/131

the deceased lacked testamentary capacity due to old age andsickness;

3. That sufficient and abundant evidence warrants conclusivelythe fact that the purported will of the deceased was notexecuted and attested as required by law;

4. That the evidence is likewise conclusive that the documentpresented for probate, Exhibit 'F' is not the purported winallegedly dictated by the deceased, executed and signed byher, 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 ishere by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed torespondent Court, hence, the only issue decided on appeal was whether ornot the will in question was executed and attested as required by law. TheCourt of Appeals, upon consideration of the evidence adduced by bothparties, rendered the decision now under review, holding that the will inquestion was signed and executed by the deceased Isabel Gabriel on April15, 1961 in the presence of the three attesting witnesses, Matilde Orobia,

Celso Gimpaya and Maria Gimpaya, signing and witnessing the documentin 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 theaforesaid decision and such motion was opposed 4by petitioner-appellantLutgarda Santiago. Thereafter. parties submitted their respectiveMemoranda, 5and on August 28, 1973, respondent Court, Former SpecialFirst Division, by Resolution 6denied the motion for reconsideration statingthat:

The oppositor-appellee contends that the preponderance ofevidence shows that the supposed last wig and testament ofIsabel Gabriel was not executed in accordance with lawbecause the same was signed on several occasions, that thetestatrix did not sign the will in the presence of all the


44/131

instrumental witnesses did not sign the will in the presence ofeach other.

The resolution of the factual issue raised in the motion forreconsideration hinges on the appreciation of the evidence. Wehave carefully re-examined the oral and documentary evidenceof record, There is no reason to alter the findings of fact in thedecision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzalescontends that respondent Court abused its discretion and/or acted withoutor in excess of its jurisdiction in reverssing the findings of fact andconclusions of the trial court. The Court, after deliberating on the petitionbut without giving due course resolved, in the Resolution dated Oct. 11,

1973 to require the respondents to comment thereon, which comment wasfiled on Nov. 14, 1973. Upon consideration of the allegations, the issuesraised and the arguments adduced in the petition, as well as theComment 8 of private respondent thereon, We denied the petition byResolution on November 26, 1973, 9 the question raised being factual andfor insufficient showing that the findings of fact by respondent Court wereunsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes frieda Motion for Reconsideration 10which private respondent answered by way

of her Comment or Opposition 11filed on January 15, 1974. A Reply andRejoinder to Reply followed. Finally, on March 27, 1974, We resolved togive 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 wasabsolutely no proof that the three instrumental witnesses were crediblewitness

II. The Court of Appeals erred in reversing the finding of the lower court thatthe preparation and execution of the win Exhibit "F", was unexpected andcoincidental.


45/131

III. The Court of Appeals erred in finding that Atty, Paraiso was notpreviously furnished with the names and residence certificates of thewitnesses 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 threetypewritten lines under the typewritten words "Pangalan" and "Tinitirahan"were left blank shows beyond cavil that the three attesting witnesses wereall present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that itwas 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" wasallegedly signed on April 15, 1961 by the deceased Isabel Gabriel and theother witnesses Celso Gimpaya and Maria Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undueimportance to the picture takings as proof that the win was improperlyexecuted.

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 trialcourt erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or hasso 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 courtand admitting to probate Exhibit "F", the alleged last will and testament ofthe deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same aresubstantially 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 beenstated and reiterated in a long line of cases enumerated in Chan vs. CA (L-


46/131

27488, June 30, 1970, 33 SCRA 737, 743) 12and Tapas vs. CA (L-22202,February 27; 1976, 69 SCRA 393), 13and in the more recent casesof 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 thethen Justice Recto, it has been well-settled that the jurisdiction of tills Courtin cases brought to us from the Court of Appeals is limited to reviewing andrevising the errors of law imputed to it, its findings of fact being conclusive.More specifically, in a decision exactly a month later, this Court, speakingthrough the then Justice Laurel, it was held that the same principle isapplicable, even if the Court of Appeals was in disagreement with the lowercourt 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 supportedby substantive evidence are not reviewable on appeal by certiorari. Saidfindings of the appellate court are final and cannot be disturbed by Usparticularly because its premises are borne out by the record or basedupon substantial evidence and what is more, when such findings arecorrect. Assignments of errors involving factual issues cannot be ventilatedin a review of the decision of the Court of Appeals because only legalquestions 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 soughtto be reversed. Where the findings of the Court of Appeals are contrary tothose of the trial court, a minute scrutiny by the Supreme Court is in order,and resort to duly-proven evidence becomes necessary. The general ruleWe have thus stated above is not without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We nowproceed to consider petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court ofAppeals erred in holding that the document, Exhibit "F", was executed andattested as required by law when there was absolutely no proof that thethree instrumental witnesses were credible witnesses. She argues that therequire. ment in Article 806, Civil Code, that the witnesses must be credibleis an absolute requirement which must be complied with before an allegedlast will and testament may be admitted to probate and that to be a credible


47/131

witness, there must be evidence on record that the witness has a goodstanding in his community, or that he is honest and upright, or reputed tobe trustworthy and reliable. According to petitioner, unless the qualificationsof the witness are first established, his testimony may not be favorablyconsidered. Petitioner contends that the term "credible" is not synonymouswith "competent" for a witness may be competent under Article 820 and821 of the Civil Code and still not be credible as required by Article 805 ofthe same Code. It is further urged that the term "credible" as used in theCivil Code should receive the same settled and well- known meaning it hasunder the Naturalization Law, the latter being a kindred legislation with theCivil Code provisions on wigs with respect to the qualifications ofwitnesses.

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 willswhile Article 821 sets forth the disqualification from being a witness to awin. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteenyears or more, and not blind, deaf or dumb, and able to readand write, may be a witness to the execution of a will mentionedin article 806 of this Code. "Art. 821. The following aredisqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of adocument, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testi

add'tl cases in succession

Documents