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CIVIL LAW REVIEW (ATTY. RUBEN BALANE)

Ateneo Law 4A 2011 |AY 2010-2011 1

ARTICLES 774/776

Union Bank v. Santibanez

452 SCRA 228 |Abu

FACTS:On May 31, 1980, the First Countryside Credit Corporation (FCCC) and

Efraim Santibaez entered into a loan agreement in the amount of P128,000.00.

The amount was intended for the payment of one (1) unit Ford 6600 Agricultural

Tractor. In view thereof, Efraim and his son, Edmund, executed a promissory note in

favor of the FCCC, the principal sum payable in five equal annual amortizations. On

Dec. 1980, FCCC and Efraim entered into another loan agreement for the payment

of another unit of Ford 6600 and one unit of a Rotamotor. Again, Efraim and

Edmund executed a promissory note and a Continuing Guaranty Agreement for the

later loan. In 1981, Efraim died, leaving a holographic will. Testate proceedings

commenced before the RTC of Iloilo City. Edmund was appointed as the special

administrator of the estate. During the pendency of the testate proceedings, thesurviving heirs, Edmund and his sister Florence, executed a Joint Agreement,

wherein they agreed to divide between themselves and take possession of the

three (3) tractors: (2) tractors for Edmund and (1) for Florence. Each of them was to

assume the indebtedness of their late father to FCCC, corresponding to the tractor

respectively taken by them. In the meantime, a Deed of Assignment with

Assumption of Liabilities was executed by and between FCCC and Union Bank,

wherein the FCCC assigned all its assets and liabilities to Union Bank.

Demand letters were sent by Union Bank to Edmund, but the latter refused

to pay. Thus, on February 5, 1988, Union Bank filed a Complaint for sum of money

against the heirs of Efraim Santibaez, Edmund and Florence, before the RTC of

Makati City. Summonses were issued against both, but the one intended for

Edmund was not served since he was in the United States and there was no

information on his address or the date of his return to the Philippines. Florence filed

her Answer and alleged that the loan documents did not bind her since she was not

a party thereto. Considering that the joint agreement signed by her and her brother

Edmund was not approved by the probate court, it was null and void; hence, she

was not liable to Union Bank under the joint agreement.

Union Bank asserts that the obligation of the deceased had passed to his

legitimate heirs (Edmund and Florence) as provided in Article 774 of the Civil Code;

and that the unconditional signing of the joint agreement estopped Florence, and

that she cannot deny her liability under the said document.

In her comment to the petition, Florence maintains that Union Bank is

trying to recover a sum of money from the deceased Efraim Santibaez; thus the

claim should have been filed with the probate court. She points out that at the time

of the execution of the joint agreement there was already an existing probate

proceedings. She asserts that even if the agreement was voluntarily executed by

her and her brother Edmund, it should still have been subjected to the approval ofthe court as it may prejudice the estate, the heirs or third parties.

ISSUE:

W/N the claim of Union Bank should have been filed with the probate court before

which the testate estate of the late Efraim Santibaez was pending. W/N the

agreement between Edmund and Florence (which was in effect, a partition of hte

estate) was void considering that it had not been approved by the probate court.

W/N there can be a valid partition among the heirs before the will is probated.

HELD:

Well-settled is the rule that a probate court has the jurisdiction todetermine all the properties of the deceased, to determine whether they should or

should not be included in the inventory or list of properties to be administered. The

said court is primarily concerned with the administration, liquidation and

distribution of the estate.

In our jurisdiction, the rule is that there can be no valid partition among

the heirs until after the will has been probated. In the present case, Efraim left a

holographic will which contained the provision which reads as follows:

(e) All other properties, real or personal, which I own and may be

discovered later after my demise, shall be distributed in the proportion

indicated in the immediately preceding paragraph in favor of Edmund and

Florence, my children.

The above-quoted is an all-encompassing provision embracing all the

properties left by the decedent which might have escaped his mind at that time he

was making his will, and other properties he may acquire thereafter. Included

therein are the three (3) subject tractors. This being so, any partition involving the

said tractors among the heirs is not valid. The joint agreement executed by Edmund

and Florence, partitioning the tractors among themselves, is invalid, specially so

since at the time of its execution, there was already a pending proceeding for the

probate of their late fathers holographic will covering the said tractors.

The Court notes that the loan was contracted by the decedent. The bank,

purportedly a creditor of the late Efraim Santibaez, should have thus filed its

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money claim with the probate court in accordance with Section 5, Rule 86 of the

Revised Rules of Court.

The filing of a money claim against the decedents estate in the probate

court is mandatory. This requirement is for the purpose of protecting the estate of

the deceased by informing the executor or administrator of the claims against it,

thus enabling him to examine each claim and to determine whether it is a properone which should be allowed. The plain and obvious design of the rule is the speedy

settlement of the affairs of the deceased and the early delivery of the property to

the distributees, legatees, or heirs.

Perusing the records of the case, nothing therein could hold Florence

accountable for any liability incurred by her late father. The documentary evidence

presented, particularly the promissory notes and the continuing guaranty

agreement, were executed and signed only by the late Efraim Santibaez and his

son Edmund. As the petitioner failed to file its money claim with the probate court,

at most, it may only go after Edmund as co-maker of the decedent under the said

promissory notes and continuing guaranty.

ARTICLE 77

Uson v. Del Rosario

92:530|Andres

FACTS:

This is an action for recovery of the ownership and possession of five (5)

parcels of land in Pangasinan, filed by Maria Uson against Maria del Rosario and her

four illegit children. Maria Uson was the lawful wife of Faustino Nebreda who upon

his death in 1945 left the lands involved in this litigation. Faustino Nebreda left no

other heir except his widow Maria Uson. However, plaintiff claims that when

Faustino Nebreda died in 1945, his common-law wife Maria del Rosario took

possession illegally of said lands thus depriving her of their possession and

enjoyment. Defendants in their answer set up as special defense that Uson and her

husband, executed a public document whereby they agreed to separate as husband

and wife and, in consideration of which Uson was given a parcel of land and in

return she renounced her right to inherit any other property that may be left by her

husband upon his death. CFI found for Uson. Defendants appealed.

ISSUE:

1. W/N Uson has a right over the lands from the moment of death of herhusband.

2. W/N the illegit children of deceased and his common-law wife havesuccessional rights.

HELD:

1. Yes. There is no dispute that Maria Uson, is the lawful wife of FaustinoNebreda, former owner of the five parcels of lands litigated in the present case.

There is likewise no dispute that Maria del Rosario, was merely a common-law

wife with whom she had four illegitimate children with the deceased. It

likewise appears that Faustino Nebreda died in 1945 much prior to the

effectivity of the new Civil Code. With this background, it is evident that when

Faustino Nebreda died in 1945 the five parcels of land he was seized of at the

time passed from the moment of his death to his only heir, his widow Maria

Uson (Art 777 NCC).As this Court aptly said, "The property belongs to the heirs

at the moment of the death of the ancestor as completely as if the ancestorhad executed and delivered to them a deed for the same before his death".

From that moment, therefore, the rights of inheritance of Maria Uson over the

lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right

over the lands in question because she expressly renounced to inherit any

future property that her husband may acquire and leave upon his death in the

deed of separation, cannot be entertained for the simple reason that future

inheritance cannot be the subject of a contract nor can it be renounced.

2. No. The provisions of the NCC shall be given retroactive effect even though theevent which gave rise to them may have occurred under the prior legislation

only if no vested rights are impaired. Hence, since the right of ownership of

Maria Uson over the lands in question became vested in 1945 upon the death

of her late husband, the new right recognized by the new Civil Code in favor of

the illegitimate children of the deceased cannot, therefore, be asserted to the

impairment of the vested right of Maria Uson over the lands in dispute.

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Borja v. Borja

46 SCRA 577 |Ang

FACTS:

Francisco de Borja filed a petition for probate of the will of his wife who

died, Josefa Tangco, with the CFI of Rizal. He was appointed executor andadministrator, until he died; his son Jose became the sole administrator. Francisco

had taken a 2nd

wife Tasiana before he died; she instituted testate proceedings with

the CFI of Nueva Ecija upon his death and was appointed special administatrix. Jose

and Tasiana entered upon a compromise agreement, but Tasiana opposed the

approval of the compromise agreement. She argues that it was no valid, because

the heirs cannot enter into such kind of agreement without first probating the will

of Francisco, and at the time the agreement was made, the will was still being

probated with the CFI of Nueva Ecija.

ISSUE:

W/N the compromise agreement is valid, even if the will of Francisco has not yetbeen probated.

HELD:

YES, the compromise agreement is valid.

The agreement stipulated that Tasiana will receive P800,000 as full

payment for her hereditary share in the estate of Francisco and Josefa.

There was here no attempt to settle or distribute the estate of Francisco

de Borja among the heirs thereto before the probate of his will. The clear object of

the contract was merely the conveyance by Tasiana Ongsingco of any and all her

individual share and interest, actual or eventual, in the estate of Francisco

de Borja and Josefa Tangco. There is no stipulation as to any other claimant,

creditor or legatee.

And as a hereditary share in a decedent's estate is transmitted or vested

immediately from the moment of the death of such causante or predecessor in

interest (Civil Code of the Philippines, Art. 777) there is no legal bar to a successor

(with requisite contracting capacity) disposing of her or his hereditary share

immediately after such death, even if the actual extent of such share is not

determined until the subsequent liquidation of the estate.

Bonilla v. Barcena

71 SCRA 491 |Angliongto

FACTS:

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla

and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the CFIof Abra, to quiet title over certain parcels of land located in Abra. The defendants

filed a motion to dismiss the complaint on the ground that Fortunata Barcena is

dead and, therefore, has no legal capacity to sue. In the hearing for the motion to

dismiss, counsel for the plaintiff confirmed the death of Fortunata Barcena, and

asked for substitution by her minor children and her husband; but the court after

the hearing immediately dismissed the case on the ground that a dead person

cannot be a real party in interest and has no legal personality to sue.

ISSUE:

W/N the CFI erred in dismissing the complaint.

HELD:

While it is true that a person who is dead cannot sue in court, yet he can

be substituted by his heirs in pursuing the case up to its completion. The records of

this case show that the death of Fortunata Barcena took place on July 9, 1975 while

the complaint was filed on March 31, 1975. This means that when the complaint

was filed on March 31, 1975, Fortunata Barcena was still alive, and therefore, the

court had acquired jurisdiction over her person. Under Section 16, Rule 3 of the

Rules of Court "whenever a party to a pending case dies ... it shall be the duty of his

attorney to inform the court promptly of such death ... and to give the name and

residence of his executor, administrator, guardian or other legal representatives."

This duty was complied with by the counsel for the deceased plaintiff when he

manifested before the respondent Court that Fortunata Barcena died on July 9,

1975 and asked for the proper substitution of parties in the case. The respondent

Court, however, instead of allowing the substitution, dismissed the complaint on

the ground that a dead person has no legal personality to sue. This is a grave error.

Article 777 of the Civil Code provides "that the rights to the succession are

transmitted from the moment of the death of the decedent." From the moment of

the death of the decedent, the heirs become the absolute owners of his property,

subject to the rights and obligations of the decedent, and they cannot be deprived

of their rights thereto except by the methods provided for by law. The moment of

death is the determining factor when the heirs acquire a definite right to the

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inheritance whether such right be pure or contingent. The right of the heirs to the

property of the deceased vests in them even before judicial declaration of their

being heirs in the testate or intestate proceedings. When Fortunata Barcena,

therefore, died, her claim or right to the parcels of land in litigation in Civil Case No.

856, was not extinguished by her death but was transmitted to her heirs upon her

death. Her heirs have thus acquired interest in the properties in litigation andbecame parties in interest in the case. There is, therefore, no reason for the

respondent Court not to allow their substitution as parties in interest for the

deceased plaintiff.

The claim of the deceased plaintiff which is an action to quiet title over the

parcels of land in litigation affects primarily and principally property and property

rights and therefore is one that survives even after her death. It is, therefore, the

duty of the respondent Court to order the legal representative of the deceased

plaintiff to appear and to be substituted for her. But what the respondent Court did,

upon being informed by the counsel for the deceased plaintiff that the latter was

dead, was to dismiss the complaint. This should not have been done for under

Section 17, Rule 3 of the Rules of Court, it is even the duty of the court, if the legalrepresentative fails to appear, to order the opposing party to procure the

appointment of a legal representative of the deceased. Unquestionably, the

respondent Court has gravely abused its discretion in not complying with the clear

provision of the Rules of Court in dismissing the complaint of the plaintiff in Civil

Case No. 856 and refusing the substitution of parties in the case.

ARTICLE 783

Vitug v. CA

183 SCRA 755 |JEN SUCCESSION REVIEWER

FACTS:

Romarico Vitug and Nenita Alonte were co-administrators of Dolores

Vitugs (deceased) estate. Rowena Corona was the executrix. Romarico, the

deceaseds husband, filed a motion with the probate court asking for authority to

sell certain shares of stock and real properties belonging to the estate to cover

alleged advances to the estate, which he claimed as personal funds. The advances

were used to pay estate taxes.

Corona opposed the motion on ground that the advances came from a

savings account which formed part of the conjugal partnership properties and is

part of the estate. Thus, there was no ground for reimbursement. Romarico claims

that the funds are his exclusive property, having been acquired through a

survivorship agreement executed with his late wife and the bank.

The agreement stated that after the death of either one of the spouses,

the savings account shall belong to and be the sole property of the survivor, and

shall be payable to and collectible or withdrawable by such survivor.

The lower court upheld the validity of the agreement and granted themotion to sell. CA reversed stating that the survivorship agreement constitutes a

conveyance mortis causa which did not comply with the formalities of a valid will.

Assuming that it was a donation inter vivos, it is a prohibited donation (donation

between spouses).

ISSUE:

W/N the survivorship agreement was valid.

HELD:

YES. The conveyance is not mortis causa, which should be embodied in a

will. A will is a personal, solemn, revocable and free act by which a capacitatedperson disposes of his property and rights and declares or complies with duties to

take effect after his death. The bequest or devise must pertain to the testator.

In this case, the savings account involved was in the nature of conjugal

funds. Since it was not shown that the funds belonged exclusively to one party, it is

presumed to be conjugal.

It is also not a donation inter vivos because it was to take effect after the

death of one party. It is also not a donation between spouses because it involved no

conveyance of a spouses own properties to the other.

It was an error to include the savings account in the inventory of the

deceaseds assets because it is the separate property of Romarico.

Thus, Romarico had the right to claim reimbursement.

A will is a personal, solemn, revocable and free act by which a capacitated

person disposes of his property and rights and declares or complies with duties to

take effect after his death.

Survivorship agreements are permitted by the NCC. However, its operation

or effect must not be violative of the law (i.e. used as a cloak to hide an inofficious

donation or to transfer property in fraud of creditors or to defeat the legitime of a

forced heir).

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ARTICLE 804

Suroza v. Honrado

110 SCRA 388 |Atcheco

FACTS:Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared

a boy named Agapito. Agapito and his wife Nenita de Vera had a daughter named

Lilia. Nenita became Agapitos guardian when he became disabled. A certain

Arsenia de la Cruz also wanted to be his guardian in another proceeding but it was

dismissed. Arsenia then delivered a child named Marilyn Sy to Marcelina who

brought her up as a supposed daughter of Agapito. Marilyn used the surname

Suroza although not legally adopted by Agapito. When Marcelina (who was an

illiterate) was 73 years old, she supposedly executed a notarial will which was in

English and thumbmarked by her. In the will, she allegedly bequeathed all her

properties to Marilyn. She also named as executrix her laundrywoman, Marina Paje.

Paje filed a petition for probate of Marcelinas will. Judge Honrado appointed Pajeas administratrix and issued orders allowing the latter to withdraw money from the

savings account of Marcelina and Marilyn, and instructing the sheriff to eject the

occupants of testatrixs house, among whom was Nenita. She and the other

occupants filed a motion to set aside the order ejecting them, alleging that Agapito

was the sole heir of the deceased, and that Marilyn was not the decedents

granddaughter. Despite this, Judge Honrado issued an order probating Marcelinas

will.

Nenita filed an omnibus petition to set aside proceedings, admit

opposition with counter-petition for administration and preliminary injunction, and

an opposition to the probate of the will and a counter-petition for letters of

administration, which were dismissed by Judge Honrado. Instead of appealing,

Nenita filed a case to annul the probate proceedings but Judge Honrado dismissed

it. The judge then closed the testamentary proceeding after noting that the

executrix had delivered the estate to Marilyn, and that the estate tax had been

paid.

Ten months later, Nenita filed a complaint before the SC, charging Judge

Honrado with having probated the fraudulent will of Marcelina. She reiterated her

contention that the testatrix was illiterate as shown by the fact that she affixed her

thumbmark to the will and that she did not know English, the language in which the

will was written. She further alleged that Judge Honrado did not take into account

the consequences of the preterition of testatrixs son, Agapito. Judge Honrado in his

comment did not deal specifically with the allegations but merely pointed to the

fact that Nenita did not appeal from the decree of probate and that in a motion, she

asked for a thirty day period within which to vacate the house of the testatrix.

Nenita subsequently filed in the CA a petition for certiorari and prohibition against

Judge Honrado wherein she prayed that the will, the decree of probate and all the

proceedings in the probate case be declared void. The CA dismissed the petitionbecause Nenitas remedy was an appeal and her failure to do so did not entitle her

to resort to the special civil action of certiorari. Relying on that decision, Judge

Honrado filed a MTD the administrative case for having allegedly become moot and

academic.

ISSUE:

W/N disciplinary action be taken against respondent judge for having admitted to

probate a will, which on its face is void because it is written in English, a language

not known to the illiterate testatrix, and which is probably a forged will because she

and the attesting witnesses did not appear before the notary as admitted by the

notary himself.

HELD:

YES. Respondent judge, on perusing the will and noting that it was written

in English and was thumbmarked by an obviously illiterate testatrix, could have

readily perceived that the will is void. In the opening paragraph of the will, it was

stated that English was a language understood and known to the testatrix. But in

its concluding paragraph, it was stated that the will was read to the testatrix and

translated into Filipino language. That could only mean that the will was written in

a language not known to the illiterate testatrix and, therefore, it is void because of

the mandatory provision of article 804 of the Civil Code that every will must be

executed in a language or dialect known to the testator.

The hasty preparation of the will is shown in the attestation clause and

notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred

to as the testator instead of testatrix. Had respondent judge been careful and

observant, he could have noted not only the anomaly as to the language of the will

but also that there was something wrong in instituting the supposed granddaughter

as sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by the deputy clerk of court, respondent

judge could have noticed that the notary was not presented as a witness. In spite of

the absence of an opposition, respondent judge should have personally conducted

the hearing on the probate of the will so that he could have ascertained whether

the will was validly executed.

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Noble v. Abaja

450 SCRA 265 | Bautista

FACTS:

The case is about the probate of the will of Alipio Abada (Not respondent

Abaja). Petitioner Belinda Noble is the administratrix of the estate of Abada.Respondent Alipio Abaja filed a petition for the probate of Abadas will. Petitioner

Noble moved for dismissal of the petition for probate.

Caponong-Noble points out that nowhere in the will can one discern that

Abada knew the Spanish language. She alleges that such defect is fatal and must

result in the disallowance of the will.

ISSUE:

Should it be expressly stated in the will that it (the will) was in a language known by

the testator?

HELD:No. There is no statutory requirement to state in the will itself that the

testator knew the language or dialect used in the will.[25] This is a matter that a

party may establish by proof aliunde. In this case, Alipio testified that Abada used to

gather Spanish-speaking people in their place. In these gatherings, Abada and his

companions would talk in the Spanish language. This sufficiently proves that Abada

speaks the Spanish language.

ARTICLES 805-806

Matias v. Salud

L-10751, 23 June 1958 |JEN SUCCESSION REVIEWER

FACTS:

The CFI denied probate of the will of Gabina Raquel. It must be noted that

Gabina Raquel was suffering from herpes zoster that afflicted the right arm and

shoulder of the testatrix, which made writing difficult and a painful act. Thus, upon

the insistence of the attorney, Gabina attempted to sign, but since it was so painful

she just managed to thumbmarked the foot of the document and the left margin at

each page. The parties opposing the probate of the will contended that the will was

void due to the irregularities in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not

be regarded as the decedents valid signature as it does not show disti nct

identifying ridgelines. And since the finger mark was an invalid signature, there

must appear in the attestation clause that another person wrote the testators

name at his request.

ISSUE:

W/N the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on

aleatory requirements as to require dexterity that can be expected of very few

persons; testators should not be required to possess the skill of trained officers.

And as to the validity of the thumbprints as signature, the SC held that it has been

held in a long line of cases that a thumbprint is always a valid and sufficient

signature for the purpose of complying with the requirement of the article.

Furthermore, the validity of thumbprints should not be limited in cases of illness orinfirmity. A thumbprint is considered as a valid and sufficient signature in

complying with the requirements of the article.

Garcia v. Lacuesta

90:489 | Castillo

FACTS:

This case involves the will of Antero Mercado, which among other defects

was signed by the testator through a cross mark (an X). The will was signed by

Atty. Javier who wrote the name of Mercado as testator and the latter allegedly

wrote a cross mark after his name. The CFI allowed the will but the CA disallowed it

because its attestation clause was defective for failing to certify 1) that the will was

signed by Atty. Javier at the express direction of the testator, 2) that the testator

wrote a cross at the end of his name after Atty. Javier signed for him, and 3) that

the 3 witnesses signed the will in the presence of the testator and of each other.

ISSUE:

Whether the will should be allowed despite the defect of the attestation clause

since the testator had placed a cross mark himself as his signature.

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HELD:

The attestation clause is fatally defective for failing to state that Mercado

directed Javier to write the testators name under his express direction. Petitioners

argument that such recital is unnecessary because the testator signed the will

himself using a cross mark which should be considered the same as a thumb-mark

(which has been held sufficient in past cases) is not acceptable. A cross mark is notthe same as a thumb mark, because the cross mark does not have the same

trustworthiness of a thumb mark.

Barut v. Cabacungan

21:461 | Casuela

FACTS:

Barut applied for the probate of the will of deceased, Maria Salomon. The

testatrix stated in the will that being unable to read or write, the will was read to

her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo

Agayan to sign her name to it as testatrix. The probate was contested by a numberof the relatives of the deceased on various grounds.

The probate court found that the will was not entitled to probate because

the handwriting of the person who it is alleged signed the name of the testatrix to

the will for and on her behalf looked more like the handwriting of one of the other

witnesses to the will than to the person whose handwriting it was alleged to be

(i.e. The probate court denied probate because the signature seemed to not have

been by Severo Agayan but by another witness).

ISSUE:

Was the dissimilarity in handwriting sufficient to deny probate of the will?

HELD:

No. The SC found that the mere dissimilarity in writing is sufficient to

overcome the uncontradicted testimony of all the witnesses that the signature of

the testatrix was written by Severo Agayan. It is also immaterial who writes the

name of the testatrix provided it is written at her request and in her presence and

in the presence of all the witnesses to the execution of the will.

Based on Section 618 of the Code of Civil Procedure, it is clear that with

respect to the validityof the will, it is unimportant whether the person who writes

the name of the testatrix signs his own or not. The important thing is that it clearly

appears that the name of the testatrix was signed at her express direction in the

presence of 3 witnesses and that they attested and subscribed it in her presence

and in the presence of each other. It may be wise that the one who signs the

testators name signs also his own; but that is not essential to the validity of the

will.

The court also held that the 3 cases cited by the lower court was not

applicable. In those cases, the person who signed the will for the testator wrote hisown name instead of the testators, so that the testators name nowhere appeared

in the will, and were thus wills not duly executed.

Nera v. Rimando

18:450 | Cukingnan

FACTS:

The only question raised by the evidence in this case as to the due

execution of the instrument propounded as a will in the court below, is whether

one of the subscribing witnesses was present in the small room where it was

executed at the time when the testator and the other subscribing witnessesattached their signatures; or whether at that time he was outside, some eight or

ten feet away, in a large room connecting with the smaller room by a doorway,

across which was hung a curtain which made it impossible for one in the outside

room to see the testator and the other subscribing witnesses in the act of attaching

their signatures to the instrument.

HELD:

Citing Jaboneta v. Gustilo, the court held that The true test of presence of

the testator and the witnesses in the execution of a will is not whether they actually

saw each other sign, but whether they might have been seen each other sign, had

they chosen to do so, considering their mental and physical condition and position

with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation

to each other at the moment of the subscription of each signature, must be such

that they may see each other sign if they choose to do so.

The question is whether the testator and the subscribing witnesses to an

alleged will signed the instrument in the presence of each other does not depend

upon proof of the fact that their eyes were actually cast upon the paper at the

moment of its subscription by each of them, but that at that moment existing

conditions and their position with relation to each other were such that by merely

casting the eyes in the proper direction they could have seen each other sign. To

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extend the doctrine further would open the door to the possibility of all manner of

fraud, substitution, and the like, and would defeat the purpose for which this

particular condition is prescribed in the code as one of the requisites in the

execution of a will.

Icasiano v. Icasiano11 SCRA 422 | Dela Cuesta

FACTS:

Celso Icasiano filed a petition for the allowance and admission to probate

of the alleged will of Josefa Villacorte, and for his appointment as executor thereof.

Natividad and Enrique Icasiano, a daughter and son of the testatrix, filed their

opposition thereto. During the course of the trial, on 19 March 1959, Celso, started

to present his evidence. But later, on 1 June 1959, he then filed an amended and

supplemental petition, alleging that the decedent had left a will executed in

duplicate and with all the legal requirements, and that he was submitting the

duplicate to the court, which he found only on 26 May 1959. Natividad and Enriquefiled their opposition, but the will and its duplicate was admitted to probate by the

trial court. Hence, this appeal by the oppositors.

Oppositors-appellants (Natividad and Enrique) in turn introduced expert

testimony to the effect that the signatures of the testatrix in the duplicate are not

genuine, nor were they written or affixed on the same occasion as the original, and

further aver that granting that the documents were genuine, they were executed

through mistake and with undue influence and pressure because the testatrix was

deceived into adopting as her last will and testament the wishes of those who will

stand to benefit from the provisions of the will, as may be inferred from the facts

and circumstances surrounding the execution of the will and the provisions and

dispositions thereof, whereby proponents- appellees stand to profit from

properties held by them as attorneys- in-fact of the deceased and not enumerated

or mentioned therein, while oppositors-appellants are enjoined not to look for

other properties not mentioned in the will, and not to oppose the probate of it, on

penalty of forfeiting their share in the portion of free disposal.

ISSUE:

Was the trial court correct in admitting the will and its duplicate to probate given

the allegations of forgery of the testators signature, or that the will was executed

under circumstances constituting fraud and undue influence and pressure?

(Not raised by the appellants in the case but discussed by the Court and in Sirs

book) Is the failure of one of the witnesses to sign a page of the will fatal to its

validity?

HELD:

The Supreme Court dismissed the appeal, holding that both the will and itsduplicate are valid in all respects.

On the allegations of forgery, fraud and undue influence:

The Court is satisfied that all the requisites for the validity of a will have

been complied with. The opinion of a handwriting expert trying to prove forgery of

the testatrix's signature failed to convince the Court, not only because it is directly

contradicted by another expert but principally because of the paucity of the

standards used by him (only three other signatures), considering the advanced age

of the testatrix, the evident variability of her signature, and the effect of writing

fatigue.

Similarly, the alleged slight variance in blueness of the ink in the admittedand questioned signatures does not appear reliable, considering that standard and

challenged writings were affixed to different kinds of paper, with different surfaces

and reflecting power. On the whole, the testimony of the oppositor's expert is

insufficient to overcome that of the notary and the two instrumental witnesses as

to the wills execution, which were presented by Celso during the trial.

Nor is there adequate evidence of fraud or undue influence. The fact that

some heirs are more favored than others is proof of neither. Diversity of

apportionment is the usual reason for making a testament; otherwise, the decedent

might as well die intestate. The testamentary disposition that the heirs should not

inquire into other property and that they should respect the distribution made in

the will, under penalty of forfeiture of their shares in the free part, do not suffice to

prove fraud or undue influence. They appear motivated by the desire to prevent

prolonged litigation which, as shown by ordinary experience, often results in a

sizeable portion of the estate being diverted into the hands of non- heirs and

speculators. Whether these clauses are valid or not is a matter to be litigated on

another occasion. It is also well to note that fraud and undue influence are

mutually repugnant and exclude each other; their joining as grounds for opposing

probate shows absence of definite evidence against the validity of the will.

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On the failure of a witness to sign a page in the original, but signed all pages in the

duplicate:

The records show that the original of the will consists of five pages, and

while signed at the end and in every page, it does not contain the signature of one

of the attesting witnesses, Atty. Jose V. Natividad, on page 3 thereof; but the

duplicate copy attached to the amended and supplemental petition is signed by thetestatrix and her three attesting witnesses in each and every page.

Witness Atty. Natividad, who testified on his failure to sign page 3 of the

original, admits that he may have lifted two pages instead of one when he signed

the same, but affirmed that page 3 was signed in his presence.

The failure Atty. Natividad to sign page three (3) was entirely through pure

oversight is shown by his own testimony as well as by the duplicate copy of the will,

which bears a complete set of signatures in every page. The text of the attestation

clause and the acknowledgment before the Notary Public likewise evidence that no

one was aware of the defect at the time. Therefore, Atty. Natividads failure to sign

page 3 of the original through mere inadvertence does not affect the wills validity.

Impossibility of substitution of this page is assured not only the fact thatthe testatrix and two other witnesses did sign the defective page, but also by its

bearing the coincident imprint of the seal of the notary public before whom the

testament was ratified by testatrix and all three witnesses. The law should not be

so strictly and literally interpreted as to penalize the testatrix on account of the

inadvertence of a single witness over whose conduct she had no control, where the

purpose of the law to guarantee the identity of the testament and its component

pages is sufficiently attained, no intentional or deliberate deviation existed, and the

evidence on record attests to the full observance of the statutory requisites.

This would not be the first time that this Court departs from a strict and

literal application of the statutory requirements, where the purposes of the law are

otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held

that a testament, with the only page signed at its foot by testator and witnesses,

but not in the left margin, could nevertheless be probated (Abangan vs. Abangan,

41 Phil. 476); and that despite the requirement for the correlative lettering of the

pages of a will, the failure to mark the first page either by letters or numbers is not

a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the

Court's policy to require satisfaction of the legal requirements in order to guard

against fraud and bad faith but without undue or unnecessary curtailment of the

testamentary privilege.

The appellants also argue that since the original of the will is in existence

and available, the duplicate is not entitled to probate. Since they opposed probate

of the original because it lacked one signature in its third page, it is easily discerned

that oppositors-appellants run here into a dilemma: if the original is defective and

invalid, then in law there is no other will but the duly signed carbon duplicate, and

the same is probatable. If the original is valid and can be probated, then the

objection to the signed duplicate need not be considered, being superfluous and

irrelevant. At any rate, said duplicate serves to prove that the omission of onesignature in the third page of the original testament was inadvertent and not

intentional.

Cagro v. Cagro

92:1032 | Dina

FACTS:

Vicente Cagro died on Feb. 14, 1949 in Samar. Since the decedent allegedly

made a will prior to his death, the will was probated before the CFI of Samar.

However, the oppositors-appellant objected the probate proceeding alleging that

the will is fatally defective because its attestation clause is not signed by theattesting witnesses. It is undisputed that the signatures of the three witnesses to

the will do not appear at the bottom of the attestation clause, although the page

containing the same is signed by the witnesses on the left-hand margin.

ISSUE:

W/N the will may be probated even if the signatures of the witnesses do not appear

at the bottom of the attestation clause, and instead, they were placed on the left-

hand margin of the page containing the same.

HELD:

No. The position taken by the oppositor-appellant is correct. The

attestation clause is 'a memorandum of the facts attending the execution of the

will' required by law to be made by the attesting witnesses, and it must necessarily

bear their signatures. An unsigned attestation clause cannot be considered as an act

of the witnesses, since the omission of their signatures at the bottom thereof

negatives their participation.

The petitioner-appellee contends that signatures of the three witnesses on

the left-hand margin conform substantially to the law and may be deemed as their

signatures to the attestation clause. This is untenable, because said signatures are

in compliance with the legal mandate that the will be signed on the left-hand

margin of all its pages. If an attestation clause not signed by the three witnesses at

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the bottom thereof, be admitted as sufficient, it would be easy to add such clause

to a will on a subsequent occasion and in the absence of the testator and any or all

of the witnesses.

Bautista Angelo, J. dissenting:

I dissent. In my opinion the will in question has substantially complied withthe formalities of the law and, therefore, should be admitted to probate. It appears

that the will was signed by the testator and was attested by three instrumental

witnesses, not only at the bottom, but also on the left-hand margin. The witnesses

testified not only that the will was signed by the testator in their presence and in

the presence of each other but also that when they did so, the attestation clause

was already written thereon. Their testimony has not been contradicted. The only

objection set up by the oppositors to the validity of the will is the fact that the

signatures of the instrumental witnesses do not appear immediately after the

attestation clause.

This objection is too technical to be entertained. In the case of Abangan vs.

Abangan, (40 Phil. 476), this court said that when the testamentary dispositions"are wholly written on only one sheet signed at the bottom by the testator and

three witnesses (as the instant case),their signatures on the left margin of said

sheet would be completely purposeless." In such a case, the court said, the

requirement of the signatures on the left hand margin was not necessary because

the purpose of the law which is to avoid the substitution of any of the sheets of

the will, thereby changing the testator's dispositions has already been

accomplished. We may say the same thing in connection with the will under

consideration because while the three instrumental witnesses did not sign

immediately by the majority that it may have been only added on a subsequent

occasion and not at the uncontradicted testimony of said witnesses to the effect

that such attestation clause was already written in the will when the same was

signed.

TUASON, J., dissenting:

I concur in Mr. Justice Bautista's dissenting opinion and may add that the

majority decision erroneously sets down as a fact that the attestation clause was

not signed when the witnesses signatures appear on the left margin and the real

and only question is whether such signatures are legally sufficient. The law on wills

does not provide that the attesting witness should sign the clause at the bottom. In

the absence of such provision, there is no reason why the signatures on the margin

are not acceptable

Cruz v. Villasor

54 SCRA 752 | Dizon

FACTS:

The CFI of Cebu allowed the probate of Valente Z. Cruzs last will and

testament. His surviving spouse, Agapita Cruz, opposed the allowance of the willalleging it was executed through fraud, deceit, misrepresentation and undue

influence; that the said instrument was execute without the testator having been

fully informed of the content thereof, particularly as to what properties he was

disposing and that the supposed last will and testament was not executed in

accordance with law. Agapita appealed the allowance of the will by certiorari.

ISSUE:

W/N the will was executed in accordance with law (particularly Articles 805 and 806

of the NCC, the first requiring at least three credible witnesses to attest and

subscribe to the will, and the second requiring the testator and the witnesses to

acknowledge the will before a notary public.).

HELD:

NO. Of the three instrumental witnesses to the will, one of them (Atty.

Teves) is at the same time the Notary Public before whom the will was supposed to

have been acknowledged. The notary public before whom the will was

acknowledged cannot be considered as the third instrumental witness since he

cannot acknowledge before himself his having signed the will. To acknowledge

before means to avow (Javellana v. Ledesma; Castro v. Castro); to own as genuine,

to assent, to admit; and "before" means in front or preceding in space or ahead of.

Consequently, if the third witness were the notary public himself, he would have to

avow assent, or admit his having signed the will in front of himself. This cannot be

done because he cannot split his personality into two so that one will appear before

the other to acknowledge his participation in the making of the will. To permit such

a situation to obtain would be sanctioning a sheer absurdity. Furthermore, the

function of a notary public is, among others, to guard against any illegal or immoral

arrangement (Balinon v. De Leon). That function would defeated if the notary public

were one of the attesting instrumental witnesses. It would place him in inconsistent

position and the very purpose of acknowledgment, which is to minimize fraud,

would be thwarted.

Admittedly, there are American precedents holding that notary public may,

in addition, act as a witness to the executive of the document he has notarized.

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There are others holding that his signing merely as notary in a will nonetheless

makes him a witness thereon. But these authorities do not serve the purpose of the

law in this jurisdiction or are not decisive of the issue herein because the notaries

public and witnesses referred to in these cases merely acted as instrumental,

subscribing attesting witnesses, and not as acknowledging witnesses. Here, the

notary public acted not only as attesting witness but also acknowledging witness, asituation not envisaged by Article 805-06. Probate of will set aside.

Javellana v. Ledesma

97:258 | Enriquez

FACTS:

The Court of First Instance of Iloilo admitted to probate the documents in

the Visayan dialectas the testament and codicil duly executed by the deceased Da.

Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May 29, 1952,

respectively, with Ramon Tabiana, Gloria Montinola de Tabiana and Vicente Yap as

witnesses. The contestant, Matea Ledesma, sister and nearest surviving relative ofsaid deceased, appealed from the decision, insisting that the said exhibits were not

executed in conformity with law. Ledesma is questioning the validity of the codicil

contending that the fact that the notary did not sign the instrument in the presence

of the testator and the witness made the codicil was not executed in conformity

with the law

ISSUE:

W/N the codicil was validly executed.

HELD:

The instrumental witnesses (who happen to be the same ones who

attested the will of 1950) asserted that after the codicil had been signed by the

testatrix and the witnesses at the San Pablo Hospital, the same was signed and

sealed by notary public Gimotea on the same occasion. On the other hand, Gimotea

affirmed that he did not do so, but brought the codicil to his office, and signed and

sealed it there. The variance does not necessarily imply conscious perversion of

truth on the part of the witnesses, but appears rather due to a well-established

phenomenon, the tendency of the mind, in recalling past events, to substitute the

usual and habitual for what differs slightly from it.

Whether or not the notary signed the certification of acknowledgment in

the presence of the testatrix and the witnesses, does not affect the validity of the

codicil. The new Civil Code does not require that the signing of the testator,

witnesses and notary should be accomplished in one single act. A comparison of

Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses

sign in the presence of each other, all that is thereafter required is that "every will

must be acknowledged before a notary public by the testator and the witnesses"

(Art. 806); i.e., that the latter should avow to the certifying officer the authenticityof their signatures and the voluntariness of their actions in executing the

testamentary disposition. This was done in this case. The subsequent signing and

sealing by the notary of his certification that the testament was duly acknowledged

by the participants therein is no part of the acknowledgment itself nor of the

testamentary act. Hence their separate execution out of the presence of the

testatrix and her witnesses cannot be said to violate the rule that testaments

should be completed without interruption. It is noteworthy that Article 806 of the

new Civil Code does not contain words requiring that the testator and the witnesses

should acknowledge the testament on the same day or occasion that it was

executed.

Ortega v. Valmonte

478 SCRA 247 | Escosia

FACTS:

Two years after the arrival of Placido from the United States and at the age

of 80 he wed Josefina who was then 28 years old. But in a little more than two years

of wedded bliss, Placido died. Placido executed a notarial last will and testament

written in English and consisting of 2 pages, and dated 15 June 1983but

acknowledged only on 9 August 1983. The allowance to probate of this will was

opposed by Leticia, Placidos sister. According to the notary public who notarized

the testators will, after the testator instructed him on the terms and dispositions

he wanted on the will, the notary public told them to come back on 15 August 1983

to give him time to prepare. The testator and his witnesses returned on the

appointed date but the notary public was out of town so they were instructed by

his wife to come back on 9 August 1983. The formal execution was actually on 9

August 1983. He reasoned he no longer changed the typewritten date of 15 June

1983 because he did not like the document to appear dirty.

Petitioners argument:

1. At the time of the execution of the notarial will Placido was already 83 yearsold and was no longer of sound mind.

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2. Josefina conspired with the notary public and the 3 attesting witnesses indeceiving Placido to sign it. Deception is allegedly reflected in the varying dates

of the execution and the attestation of the will.

ISSUE:

1. W/N Placido has testamentary capacity at the time he allegedly executed thewill.

2. W/N the signature of Placido in the will was procured by fraud or trickery.HELD:

1. YES. Despite his advanced age, he was still able to identify accurately the kindsof property he owned, the extent of his shares in them and even their location.

As regards the proper objects of his bounty, it was sufficient that he identified

his wife as sole beneficiary. The omission of some relatives from the will did not

affect its formal validity. There being no showing of fraud in its execution,

intent in its disposition becomes irrelevant.

2. NO. Fraud is a trick, secret devise, false statement, or pretense, by which thesubject of it is cheated. It may be of such character that the testator is misled

or deceived as to the nature or contents of the document which he executes,

or it may relate to some extrinsic fact, in consequence of the deception

regarding which the testator is led to make a certain will which, but for fraud,

he would not have made.

The party challenging the will bears the burden of proving the existence of

fraud at the time of its execution. The burden to show otherwise shifts to the

proponent of the will only upon a showing of credible evidence of fraud.

Omission of some relatives does not affect the due execution of a will.

Moreover, the conflict between the dates appearing on the will does not

invalidate the document, because the law does not even require that a

notarial will be executed and acknowledged on the same occasion. The

variance in the dates of the will as to its supposed execution and attestation

was satisfactorily and persuasively explained by the notary public and

instrumental witnesses.

Guerrero v. Bihis

521 SCRA 394 | Estorninos

FACTS:

Felisa Tamio de Buenaventura, mother of petitioner Bella A. Guerrero and

respondent Resurreccion A. Bihis, died. Guerrero filed for probate in the RTC QC.Respondent Bihis opposed her elder sister's petition on the following grounds: the

will was not executed and attested as required by law; its attestation clause and

acknowledgment did not comply with the requirements of the law; the signature of

the testatrix was procured by fraud and petitioner and her children procured the

will through undue and improper pressure and influence. Petitioner Guerrero was

appointes special administratrix. Respondent opposed petitioner's appointment but

subsequently withdrew her opposition. The trial court denied the probate of the

will ruling that Article 806 of the Civil Code was not complied with because the will

was "acknowledged" by the testatrix and the witnesses at the testatrix's residence

at No. 40 Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a

commissioned notary public for and in Caloocan City.

ISSUE:

Did the will "acknowledged" by the testatrix and the instrumental witnesses before

a notary public acting outside the place of his commission satisfy the requirement

under Article 806 of the Civil Code?

HELD:

No. One of the formalities required by law in connection with the

execution of a notarial will is that it must be acknowledged before a notary public

by the testator and the witnesses. 6 This formal requirement is one of the

indispensable requisites for the validity of a will. 7 In other words, a notarial will

that is not acknowledged before a notary public by the testator and the

instrumental witnesses is void and cannot be accepted for probate. cDICaS

The Notarial law provides: SECTION 240.Territorial jurisdiction. The

jurisdiction of a notary public in a province shall be co-extensive with the province.

The jurisdiction of a notary public in the City of Manila shall be co-extensive with

said city. No notary shall possess authority to do any notarial act beyond the limits

of his jurisdiction.

The compulsory language of Article 806 of the Civil Code was not complied

with and the interdiction of Article 240 of the Notarial Law was breached.

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Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo were all

completely void.

Lee v. Tambago

544 SCRA 393 | Fortea

FACTS:

Complainant, Manuel L. Lee, charged respondent, Atty. Regino B.

Tambago, with violation of Notarial Law and the Ethics of the legal profession for

notarizing a will that is alleged to be spurious in nature in containing forged

signatures of his father, the decedent, Vicente Lee Sr. and two other witnesses. In

the said will, the decedent supposedly bequeathed his entire estate to his wife Lim

Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena

Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent

on June 30, 1965.Complainant, however, pointed out that the residence certificate

of the testator noted in the acknowledgment of the will was dated January 5, 1962.

Furthermore, the signature of the testator was not the same as his signature as

donor in a deed of donationwhich supposedly contained his purported signature.

Complainant averred that the signatures of his deceased father in the will and in the

deed of donation were "in any way entirely and diametrically opposed from one

another in all angle[s]."

Complainant also questioned the absence of notation of the residence

certificates of the purported witnesses Noynay and Grajo. He alleged that their

signatures had likewise been forged and merely copied from their respective voters

affidavits.

Complainant further asserted that no copy of such purported will was on

file in the archives division of the Records Management and Archives Office of the

National Commission for Culture and the Arts (NCCA).

ISSUE:

Was the will spurious?

HELD:

Yes, thus Tambago violated the Notarial Law and the ethics of legal

profession.

The law provides for certain formalities that must be followed in the

execution of wills. The object of solemnities surrounding the execution of wills is to

close the door on bad faith and fraud, to avoid substitution of wills and testaments

and to guarantee their truth and authenticity.

A notarial will, as the contested will in this case, is required by law to be

subscribed at the end thereof by the testator himself. In addition, it should be

attested and subscribed by three or more credible witnesses in the presence of the

testator and of one another. The will in question was attested by only twowitnesses. On this circumstance alone, the will must be considered void. This is in

consonance with the rule that acts executed against the provisions of mandatory or

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

The Civil Code likewise requires that a will must be acknowledged before a notary

public by the testator and the witnesses. An acknowledgment is the act of one who

has executed a deed in going before some competent officer or court and declaring

it to be his act or deed. It involves an extra step undertaken whereby the signatory

actually declares to the notary public that the same is his or her own free act and

deed. The acknowledgment in a notarial will has a two-fold purpose: (1) to

safeguard the testators wishes long after his demise and (2) to assure that his

estate is administered in the manner that he intends it to be done.A cursory examination of the acknowledgment of the will in question

shows that this particular requirement was neither strictly nor substantially

complied with. For one, there was the conspicuous absence of a notation of the

residence certificates of the notarial witnesses Noynay and Grajo in the

acknowledgment. Similarly, the notation of the testators old residence certificate

in the same acknowledgment was a clear breach of the law. These omissions by

respondent invalidated the will.

As the acknowledging officer of the contested will, respondent was

required to faithfully observe the formalities of a will and those of notarization.

These formalities are mandatory and cannot be disregarded.

ARTICLE 808

Garcia v. Vasquez

32 SCRA 489 | Grapilon

FACTS:

This is a petition for appeal from the CFI of Manila admitting to probate

the will of Gliceria Avelino del Rosario (Gliceria) executed in 1960. Likewise, this is

also an appeal to remove the current administrator, Consuelo Gonzales-Precilla(

Consuelo) as special administratrix of the estate on the ground of Consuelo

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possesses interest adverse to the estate and to order the RD of Manila to annotate

on the registered lands a notice of Lis Pendens.

When Gliceria died she had no descendants, ascendants, bros or sisses

and 90 yrs old. After which, her niece, Consuelo petitioned the court to be the

administratrix of the properties. The court approved this because Consuelo has

been was already managing the properties of the deceased during her lifetime.What the respondents allege is that in the last years of the deceased, Consuelo

sought the transfer of certain parcels of land valued at 300k for a sale price of 30k

to her husband Alfonso through fraud and intimidation. In addition, the oppositors

presented evidence that Consuelo asked the court to issue new Certificates of Titles

to certain parcels of land for the purpose of preparing the inventory to be used in

the probate. Also shown was that NEW TCTs were issued by the RD for certain lands

of the deceased after Consuelo asked for the old TCTs.

At the end of the probate proceedings, the court ruled that Counsuelo

should be made the administrator, and that the will was duly executed because of

these reasons: NO EVIDENCE HAS BEEN PRESENTED to establish that the deceased

was not of sound mind, that eventough the allegations state that the deceasedprepared another will in 1956 (12pages), the latter is not prevented from executing

another will in 1960 (1page), and that inconsistencies in the testimonies of the

witnesses prove their truthfulness.

ISSUE:

Was the will in 1960 (1 page) duly/properly executed?

HELD:

NO. Provision of Article 808 mandatory. Therefore, For all intents and

purposes of the rules on probate, the testatrix was like a blind testator, and the due

execution of her will would have required observance of Article 808. The rationale

behind the requirement of reading the will to the testator if he is blind or incapable

of reading the will himself (as when he is illiterate) , is to make the provisions

thereof known to him, so that he may be able to object if they are not in

accordance with his wishes. Likewise, the 1970 will was done in Tagalog which the

deceased is not well versed but in Spanish. This creates doubt as to the due

execution of the will and as well as the typographical errors contain therein which

show the haste in preparing the 1 page will as compared to the 12 page will created

in 1956 written in Spanish. ALSO, as to the blindness, there was proof given by the

testimony of the doctor that the deceased could not read at near distances because

of cataracts. (Testatrixs vision was mainly for viewing distant objects and not for

reading print.) Since there is no proof that it was read to the deceased twice, the

will was NOT duly executed.

ALSO, Consuelo should be removed as administrator because she is not

expected to sue her own husband to reconvey the lands to the estate alleged to

have been transferred by the deceased to her own husband.

The notice of lis pendens is also not proper where the issue is not an actionin rem, affecting real property or the title thereto.

Alvarado v. Gaviola


FACTS:

On 5 November 1977, 79-year old Brigido Alvarado executed a notarial

will entitled Huling Habilin wherein he disinherited an illegitimate son, petitioner

Cesar Alvarado, and expressly revoked a previously executed holographic will at the

time awaiting probate before the RTC of Laguna.

According to Bayani Ma. Rino, private respondent, he was present whenthe said notarial will was executed, together with three instrumental witnesses and

the notary public, where the testator did not read the will himself, suffering as he

did from glaucoma.

Rino, a lawyer, drafted the eight-page document and read the same aloud

before the testator, the three instrumental witnesses and the notary public, the

latter four following the reading with their own respective copies previously

furnished them.

Thereafter, a codicil entitled Kasulatan ng Pagbabago ng Ilang

Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni

Brigido Alvarado was executed changing some dispositions in the notarial will to

generate cash for the testators eye operation.

Said codicil was likewise not read by Brigido Alvarado and was read in the

same manner as with the previously executed will.

When the notarial will was submitted to the court for probate, Cesar

Alvarado filed his opposition as he said that the will was not executed and attested

as required by law; that the testator was insane or mentally incapacitated due to

senility and old age; that the will was executed under duress, or influence of fear or

threats; that it was procured by undue pressure and influence on the part of the

beneficiary; and that the signature of the testator was procured by fraud or trick.

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ISSUE:

W/N notarial will of Brigido Alvarado should be admitted to probate despite

allegations of defects in the execution and attestation thereof as testator was

allegedly blind at the time of execution and the double-reading requirement under

Art. 808 of the NCC was not complied with.

HELD:

YES. The spirit behind the law was served though the letter was not.

Although there should be strict compliance with the substantial requirements of

law in order to insure the authenticity of the will, the formal imperfections should

be brushed aside when they do not affect its purpose and which, when taken into

account, may only defeat the testators will.

Cesar Alvardo was correct in asserting that his father was not totally blind

(of counting fingers at 3 feet) when the will and codicil were executed, but he can

be so considered for purposes of Art. 808.

That Art. 808 was not followed strictly is beyond cavil.

However, in the case at bar, there was substantial compliance where thepurpose of the law has been satisfied: that of making the provisions known to the

testator who is blind or incapable of reading the will himself (as when he is

illiterate) and enabling him to object if they do not accord with his wishes.

Rino read the testators will and codicil aloud in the presence of the

testator, his three instrumental witnesses, and the notary public.

Prior and subsequent thereto, the testator affirmed, upon being asked,

that the contents read corresponded with his instructions.

Only then did the signing and acknowledgment take place.

There is no evidence that the contents of the will and the codicil were not

sufficiently made known and communicated to the testator.

With four persons, mostly known to the testator, following the reading

word for word with their own copies, it can be safely concluded that the testator

was reasonably assured that what was read to him were the terms actually

appearing on the typewritten documents.

The rationale behind the requirement of reading the will to the testator if

he is blind or incapable of reading the will to himself (as when he is illiterate), is to

make the provisions thereof known to him, so that he may be able to object if they

are not in accordance with his wishes.

Although there should be strict compliance with the substantial

requirements of law in order to insure the authenticity of the will, the formal

imperfections should be brushed aside when they do not affect its purpose and

which, when taken into account, may only defeat the testators will.

ARTICLE 809

Caneda v. CA222 SCRA 781 |JEN SUCCESSION REVIEWER

FACTS:

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 before 3 witnesses.

He was assisted by his lawyer, Atty. Emilio Lumontad.

In the will, it was declared that the testator was leaving by way of legacies

and devises his real and personal properties to several people all of whom do not

appear to be related to the testator.

4 months later, Mateo Caballero himself filed a case seeking the probate ofhis last will and testament, but numerous postponements pushed back the initial

hearing of the probate court regarding the will.

On May 29, 1980, the testator passed away before his petition could finally

be heard by the probate court.

Thereafter one of the legatees, Benoni Cabrera, sought his appointment as

special administrator of the testators estate.

Thereafter, the petitioners, claiming to be nephews and nieces of the

testator, instituted a second petition for intestate proceedings. They also opposed

the probate of the testators will and the appointment of a special administrator for

his estate.

Benoni Cabrera died and was replaced by William Cabrera as special

administrator and gave an order that the testate proceedings for the probate of the

will had to be heard and resolved first.

In the course of the proceedings, petitioners opposed to the allowance of

the testators will on the ground that on the alleged date of its execution, the

testator was already in poor state of health such that he could not have possibly

executed the same. Also the genuineness of the signature of the testator is in

doubt.

On the other hand, one of the attesting witnesses and the notary public

testified that the testator executed the will in question in their presence while he

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was of sound and disposing mind and that the testator was in good health and was

not unduly influenced in any way in the execution of his will.

Probate court then rendered a decision declaring the will in question as

the last will and testament of the late Mateo Caballero.

CA affirmed the probate courts decision stating that it substantially

complies with Article 805. Hence this appeal.

ISSUE:

W/N the attestation clause in the will of the testator is fatally defective or can be

cured under the art. 809.

HELD:

No. It does not comply with the provisions of the law.

Ordinary or attested wills are governed by Arts. 804 to 809. The will must

be acknowledged before a notary public by the testator and the attesting

witnesses. The attestation clause need not be written in a language known to the

testator or even to the attesting witnesses.It is a separate memorandum or record of the facts surrounding the

conduct of execution and once signed by the witnesses it gives affirmation to the

fact that compliance with the essential formalities required by law has been

observed.

The attestation clause, therefore, provides strong legal guaranties for the

due execution of a will and to insure the authenticity thereof.

It is contended by petitioners that the attestation clause in the will failed

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. And the Court agrees.

The attestation clause does not expressly state therein the circumstancethat 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

space 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.

Clearly lacking is the statement that the witnesses signed the will and

every page thereof in the presence of the testator and of one another. That the

absence of the 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

probated.

Also, Art. 809 does not apply to the present case because the attestation

clause totally omits the fact that the attesting witnesses signed each and every page

of the will in the presence of the testator and of each other. The defect in this case

is not only with respect to the form or the language of the attestation clause. Thedefects must be remedied by intrinsic evidence supplied by the will itself which is

clearly lacking in this case.

Therefore, the probate of the will is set aside and the case for the intestate

proceedings shall be revived.

Article 809 cannot be used to cure the defects of the will when it does not

pertain to the form or language of the will. This is because there is not substantial

compliance with Article 805.

Azuela v. CA

487 SCRA 119 |Jalipa

ARTICLE 810

Roxas v. De Jesus

134 SCRA 245 | Lantion

FACTS:

Bibiane Roxas died. Her brother, Simeon Roxas, filed a spec. pro. for

partition of the estate of the deceased and also delivered the holographic will of the

deceased. Simeon stated that he found a notebook belonging to deceased, which

contained a letter-will entirely written and signed in deceaseds handwriting. The

will is dated "FEB./61 " and states: "This is my will which I want to be respected

although it is not written by a lawyer. Roxas relatives corroborated the fact that thesame is a holographic will of deceased, identifying her handwriting and signature.

Respondent opposed probate on the ground that it such does not comply with

Article 810 of the CC because the date contained in a holographic will must signify

the year, month, and day.

ISSUE:

W/N the date "FEB./61 " appearing on the holographic Will of the deceased Bibiana

Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code.

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HELD:

Valid date.

This will not be the first time that this Court departs from a strict and literal

application of the statutory requirements regarding the due execution of Wills. The

underlying and fundamental objectives permeating the provisions of the law wills

consists in the liberalization of the manner of their execution with the end in viewof 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. If a Will has been

executed in substantial compliance with the formalities of the law, and the

possibility of bad faith and fraud in the exercise thereof is obviated, said Will should

be admitted to probate (Rey v. Cartagena 56 Phil. 282).

If the testator, in executing his Will, attempts to comply with all the

requisites, although compliance is not literal, it is sufficient if the objective or

purpose sought to be accomplished by such requisite is actually attained by the

form followed by the testator. In Abangan v. Abanga 40 Phil. 476, we ruled that:

The object of the solemnities surrounding the execution of wills is to close the dooragainst bad faith and fraud, to avoid substitution of wills and testaments and to

guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such

contingencies as that of two competing Wills executed on the same day, or of a

testator becoming insane on the day on which a Will was executed (Velasco v.

Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence

of bad faith and fraud in its execution nor was there any substitution of Wins and

Testaments. There is no question that the holographic Will of the deceased Bibiana

Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and

in a language known to her. There is also no question as to its genuineness and due

execution. All the children of the testatrix agree on the genuineness of theholographic Will of their mother and that she had the testamentary capacity at the

time of the execution of said Will. The objection interposed by the oppositor-

respondent Luz Henson is that the holographic Will is fatally defective because the

date "FEB./61 " appearing on the holographic Will is not sufficient compliance with

Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month,

and year of its execution. However, when as in the case at bar, there is no

appearance of fraud, bad faith, undue influence and pressure and the authenticity

of the Will is established and the only issue is whether or not the date "FEB./61"

appearing on the holographic Will is a valid compliance with Article 810 of the Civil

Code, probate of the holographic Will should be allowed under the principle of

substantial compliance.

Labrador v. CA


FACTS:

Melecio died leaving behind a parcel of land to his heirs. However, during

probate proceedings, Jesus and Gaudencio filed an opposition on the ground that

the will has been extinguished by implication of law alleging that before Melecios

death, the land was sold to them evidenced by TCT No. 21178. Jesus eventually sold

it to Navat.

Trial court admitted the will to probate and declared the TCT null and void.

However, the CA on appeal denied probate on the ground that it was undated.

ISSUE:W/N the alleged holographic will is dated, as provided for in Article 810 of CC.

HELD:

YES. The law does not specify a particular location where the date should

be placed in the will. The only requirements are that the date be in the will itself

and executed in the hand of the testator.

The intention to show March 17 1968 as the date of the execution is plain

from the tenor of the succeeding words of the paragraph. It states that this being

in the month of March 17th

day, in the year 1968, and this decision and or

instruction of mine is the matter to be followed. And the one who made this writing

is no other than Melecio Labrador, their father. This clearly shows that this is a

unilateral act of Melecio who plainly knew that he was executing a will.

ARTICLE 811

Gan v. Yap

104:509 | Lugtu

FACTS:

Felicidad Yap died of a heart failure, leaving properties in Pulilan, Bulacan,

and in Manila.

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Fausto E. Gan, her nephew, initiated the proceedings in the Manila CFI

with a petition for the probate of a holographic will allegedly executed by the

deceased.

The will was not presented because Felicidads husband, Ildefonso,

supposedly took it. What was presented were witness accounts of relatives who

knew of her intention to make a will and allegedly saw it as well. According to thewitnesses, Felicidad did not want her husband to know about it, but she had made

known to her other relatives that she made a will.

Opposing the petition, her surviving husband Ildefonso Yap asserted that

the deceased had not left any will, nor executed any testament during her lifetime.

After hearing the parties and considering their evidence, the Judge refused

to probate the alleged will on account of the discrepancies arising from the facts.

For one thing, it is strange that Felicidad made her will known to so many of her

relatives when she wanted to keep it a secret and she would not have carried it in

her purse in the hospital, knowing that her husband may have access to it. There

was also no evidence presented that her niece was her confidant.

In the face of these improbabilities, the trial judge had to accept theoppositors evidence that Felicidad did not and could not have executed such

holographic will.

ISSUE:

1. May a holographic will be probated upon the testimony of witnesses who haveallegedly seen it and who declare that it was in the handwriting of the testator?

2. W/N Felicidad could have executed the holographic will.HELD:

1. No. The will must be presented.The New Civil Code effective in 1950 revived holographic wills in its arts.

810-814. "A person may execute a holographic will which must be entirelywritten, dated, and signed by the hand of the testator himself. It is subject to

no other form and may be made in or out of the Philippines, and need not be

witnessed."

This is a radical departure from the form and solemnities provided for wills

under Act 190, which for fifty years (from 1901 to 1950) required wills to be

subscribed by the testator and three credible witnesses in each and every page;

such witnesses to attest to the number of sheets used and to the fact that the

testator signed in their presence and that they signed in the presence of the

testator and of each other. Authenticity and due execution is the dominant

requirements to be fulfilled when such will is submitted to the courts for

allowance. For that purpose the testimony of one of the subscribing witnesses

would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the

three must testify, if available. From the testimony of such witnesses (and of

other additional witnesses) the court may form its opinion as to the

genuineness and authenticity of the testament, and the circumstances its dueexecution.

With regard to holographic wills, no such guaranties of truth and veracity

are demanded, since as stated, they need no witnesses; provided however,

that they are "entirely written, dated, and signed by the hand of the testator

himself."

In the probate of a holographic will" says the New Civil Code, "it shall be

necessary that at least one witness who knows the handwriting and signature

of the testator explicitly declare that the will and the signature are in the

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