G.R. No. L-37453 May 25, 1979RIZALINA GABRIEL GONZALES, petitioner,

vs.HONORABLE COURT OF APPEALS and

LUTGARDA SANTIAGO, respondents.

GUERRERO , J. :

FACTS:

On June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, 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.The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago.

To herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "akingmahalnapamangkinnaakingpinalaki, inalagaan at minahalnakatulad ng isangtunaynaanak" and named as universal heir and executor, were bequeathed all properties and estate, real or personal already acquired, or

to be acquired, in her testatrix name, after satisfying the expenses, debts and legacies as aforementioned.

ISSUE :

Did the respondent Court abuse its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and conclusions of the trial court.

HELD :

NO .

We find that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, MatildeOrobia, CelsoGimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner.

G.R. No. L-21151             February 25, 1924

In re will of Antonio Vergel de Dios, deceased. RAMON J. FERNANDEZ, petitioner-appellant,

HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants,

vs.FERNANDO VERGEL DE DIOS, ET AL., opponents-

appellees.

ROMUALDEZ, J.:

Facts:

as a will was propounded by Ramon J. Fernandez for probate. and contested by Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia, the court of First Instance of Manila having denied its probate.

The applicant takes this appeal, assigning error to the action of the lower court in holding the attestation fatally defective and in not finding Act No. 2645 void.

The defects attributed to the will by the contestants are as follows, to wit:

(a) It was not sufficiently proven that the testator knew the contents of the will.

(b) The testator did not sign all the pages of the will.

(c) He did not request anybody to attest the document as his last will.

(d) He did not sign it in the presence of any witness.

(e) The witnesses did not sign it in the presence of the testator, or of each other, nor with knowledge on the part of the testator that they were signing his will.

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(f ) The witnesses did not sign the attestation clause before the death of the testator.

(g) This clause was written after the execution of the dispositive part of the will and was attached to the will after the death of the testator.

(h) The signatures of the testator on page 3 of Exhibit A are not authentic.

Issue: is the attestation clause made in accordance with the formalities required by law?

Held: yes. In the case at bar the attestation clause in question states that the requirements prescribed for the will were complied with, and this is enough for it, as such attestation clause, to be held as meeting the requirements prescribed by the law for it.

The fact that in said clause the signature of the testator does not appear does not affect its validity, for, as above stated, the law does not require that it be signed by the testator.

We find no merit in the assignment of error raising the question as to the validity of Act No. 2645, which is valid. For the purposes of this decision, it is not necessary to reason out this conclusion, it being sufficient for the adjudication of this case to hold the first error assigned by the appellants to have been demonstrated.

1. Unson vs. Abella

A will can be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by law. As a general rule, the attesting witnesses must be produced when there is opposition to the probate. But

there are exceptions to this rule, for instance, when the witness is dead, cannot be served with process of the court, or his reputation for the truth has been questioned, or he appears hostile to the proponent.

FACTS • Pedro Unson, executor of Dona Josefa Zalamea’s last will, filed a petition for the probate of the will of the latter. Attached on the said will is an inventory of all the properties of Dona Josefa. • Opposition was made thereto by Antonio, Ignacia and Avivencia Abella and Santiago Vito on the ff. grounds: -will is not paged correlatively in letters rather it is in Arabic numerals - There is no attestation clause in the inventory attached to the will -Will was not signed by the testatrix and the witnesses in the presence of each other. Note: only as to the presented oppositors the two witnesses namely Gonzalo Avaya and Eugenio Zalamea testified authenticity of the will. The third witness, Pedro de Jesus, was not because he was hostile with Unson and has been meeting with the since the filing of the petition for the probate of the will of Josefa. But supposing that de Jesus, when cited, had testified adversely to the application, this would not by itself have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the law. ISSUE: WON the will is valid? HELD: YES! 1. As to the paging of the will, the SC cited the case of Aldaba v. Roque. Thus: It was held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate

the writing of the letters A, B, C, etc., does not make for the easiness to forge the signatures. 2. The inventory is referred to in the will as an “integral part” of it so the inventory need not have an additional attestation clause at the end. The actuation of the proponents in NOT bringing to court Pedro de Jesus does not render the will invalid. As announced in Cabang vs. Delfinado, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must be produced. Exceptions: a. when a witness is dead, or b. cannot be served with process of the court, or c. his reputation for truth has been questioned or d. He appears hostile to the cause of the proponent. 3. In the aforementioned cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the case, the court is satisfied that the will has been duly executed. ALBERTO BATAC CO DELA ROSA GUERRERO OLALIA REVOTE SALVADOR TAYAG

1. Tabaoada v. Rosal (1982)

On the first page (which contained the entire testamentary dispositions), the testatrix signed at the bottom, while the witnesses signed at the left-hand margin. On the second page which contained the attestation clause, the testatrix signed at the left hand margin, and the witnesses signed below the attestation clause. The attestation clause also did not state the number of pages.

Held: Valid. The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause.

The objects of attestation and of subscription were fully met and satisfied when the witnesses signed at the left margin of the sole page which contained all the testamentary dispositions.

The failure to state the number of pages would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is

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really composed of only 2 pages duly signed by the testatrix and her instrumental witnesses.

2. Azuela v. CA (2006)

Will was two pages long. The number of pages were also not stated in the attestation, only a blank was there.

The will was not properly acknowledged. (“Nilagdaan ko at ninotario ko ngayong 10 Hunyo, dito sa Manila.”)

The witnesses also did not sign under the attestation clause but on the left hand margin of the page.

Held: Invalid will.Issue of number of pages: no substantial

compliance in this case because no statement in the attestation clause or anywhere else in the will itself as to the number of pages which comprise the will.

Issue of witnesses not signing under the attestation clause: the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. the attestation clause is separate and apart from the disposition of the will. They should sign below it.

Issue of not properly acknowledged: contrary to Art 806. Acknowledgement is the act of one who has executed a deed in going before some competent officer and declaring it to be his act or deed. Moreover, will must be acknowledged and not merely subscribed and sworn to. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.

FELIX AZUELA v. COURT OF APPEALS and GERALDA AIDA CASTILLO, substituted

by ERNESTO G. CASTILLO

G.R. 122880, 12 April 2006, Tinga, J. (Third Division)

Facts:

A will whose attestation clause does not contain the number of pages on which the will is written is fatally

defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally defective. And perhaps

most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of

these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection.

Felix Azuela filed a petition with the trial court for the probate of a notarial will purportedly

executed by Eugenia E. Igsolo on June 10, 1981 and notarized on the same day. The will consisted of

two (2) pages and was written in Filipino. The attestation clause did not state the number of pages

and it was not signed by the attesting witnesses at the bottom thereof. The said witnesses affixed

their signatures on the left-hand margin of both pages of the will though. Geralda Castillo opposed

the petition, claiming that the will was a forgery. She also argued that the will was not executed and

attested to in accordance with law. She pointed out that the decedent’s signature did not appear on

the second page of the will, and the will was not properly acknowledged.

The trial court held the will to be authentic and to have been executed in accordance with

law and, thus, admitted it to probate, calling to fore “the modern tendency in respect to the

formalities in the execution of a will…with the end in view of giving the testator more freedom in

expressing his last wishes.” According to the trial court, the declaration at the end of the will under

the sub-title, “Patunay Ng Mga Saksi,” comprised the attestation clause and the acknowledgement,

and was a substantial compliance with the requirements of the law. It also held that the signing by the

subscribing witnesses on the left margin of the second page of the will containing the attestation

clause and acknowledgment, instead of at the bottom thereof, substantially satisfied the purpose of

identification and attestation of the will. The Court of Appeals, however, reversed the trial court’s

decision and ordered the dismissal of the petition for probate. It noted that the attestation clause

failed to state the number of pages used in the will, thus rendering the will void and undeserving of

probate.

Azuela argues that the requirement under Article 805 of the Civil Code that “the number of

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pages used in a notarial will be stated in the attestation clause” is merely directory, rather than

mandatory, and thus susceptible to what he termed as “the substantial compliance rule.”

ISSUE:

Whether or not the subject will complied with the requirements of the law and, hence,

should be admitted to probate

HELD:

The petition is DENIED.

A will whose attestation clause does not contain the number of pages on which the will is

written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses

is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment,

but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial

will with all three defects is just aching for judicial rejection. RECENT JURISPRUDENCE – CIVIL LAW

Prior to the New Civil Code, the statutory provision governing the formal requirements of

wills was Section 618 of the Code of Civil Procedure. Extant therefrom is the requirement that the

attestation state the number of pages of the will. The enactment of the New Civil Code put in force a

rule of interpretation of the requirements of wills, at least insofar as the attestation clause is

concerned, that may vary from the philosophy that governed the said Section 618. Article 809 of the

Civil Code, the Code Commission opted to recommend a more liberal construction through the

“substantial compliance rule.” However, Justice J.B.L. Reyes cautioned that the rule “must be limited to

disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are

consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are

three or the will was notarized...But the total number of pages, and whether all persons required to sign did so in the

presence of each other must substantially appear in the attestation clause, being the only check against perjury in the

probate proceedings.” The Court suggested in Caneda v. Court of Appeals (G.R. No. 103554, May 28, 1993,

222 SCRA 781): “the rule, as it now stands, is that omission which can be supplied by an

examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal

and, correspondingly, would not obstruct the allowance to probate of the will being assailed.

However, those omissions which cannot be supplied except by evidence aliunde would result in the

invalidation of the attestation clause and ultimately, of the will itself.”

The failure of the attestation clause to state the number of pages on which the will was

written remains a fatal flaw, despite Art. 809. This requirement aims at safeguarding the will against

possible interpolation or omission of one or some of its pages and thus preventing any increase or

decrease in the pages. Following Caneda, there is substantial compliance with this requirement if the

will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and

Taboada. In this case, however, there could have been no substantial compliance with the

requirements under Art. 805 of the Civil Code since there is no statement in the attestation clause or

anywhere in the will itself as to the number of pages which comprise the will. There was an

incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the

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number of pages in the attestation clause. Yet the blank was never filled in.

The subject will cannot be considered to have been validly attested to by the instrumental

witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the

will, they do not appear at the bottom of the attestation clause. Art. 805 particularly segregates the

requirement that the instrumental witnesses sign each page of the will, from the requisite that the will

be attested and subscribed by them. The signatures on the left-hand corner of every page signify,

among others, that the witnesses are aware that the page they are signing forms part of the will. On

the other hand, the signatures to the attestation clause establish that the witnesses are referring to the

statements contained in the attestation clause itself. An unsigned attestation clause results in an

unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing

the unsigned attestation clause, such signatures cannot demonstrate these witnesses’ undertakings in

the clause, since the signatures that do appear on the page were directed towards a wholly different

avowal.

The notary public who notarized the subject will wrote, “Nilagdaan ko at ninotario ko ngayong

10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila.” By no manner of contemplation can these words

be construed as an acknowledgment. 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 might be

possible to construe the averment as a jurat, even though it does not follow to the usual language

thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the

document was subscribed and sworn to by the executor.

It may not have been said before, but a notarial will that is not acknowledged before a notary

public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to RECENT JURISPRUDENCE – CIVIL LAW

before a notary public. The importance of the requirement of acknowledgment is highlighted by the

fact that it had been segregated from the other requirements under Art. 805 and entrusted into a

separate provision, Art. 806. The express requirement of Art. 806 is that the will be “acknowledged”,

and not merely subscribed and sworn to. The acknowledgment coerces the testator and the

instrumental witnesses to declare before an officer of the law that they had executed and subscribed

to the will as their own free act or deed. Such declaration is under oath and under pain of perjury,

thus allowing for the criminal prosecution of persons who participate in the execution of spurious

wills, or those executed without the free consent of the testator. It also provides a further degree of

assurance that the testator is of certain mindset in making the testamentary dispositions to those

persons he/she had designated in the will.

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA

CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO

CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,

represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO

CANEDA, petitioners, vs.

HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of

Mateo Caballero, respondents.

 

REGALADO, J.:

Facts:

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On December 5, 1978, Mateo Caballero, a widower without any children, already in the twilight years of his life executed a last will and testament before three attesting witnesses and he was duly assisted by his lawyer and a notary public. It was declared therein that, among other things that the testator was leaving by way of legacies and devises his real and personal properties to specific persons, all of whom do not appear to be related to Mateo. Not long after, he himself filed a petition before the CFI seeking the probate of his last will and testament but the scheduled hearings were postponed, until the testator passed away before his petition could finally be heard by the probate court. Benoni Cabrera, one of the legatees named in the will, sought his appointment as special administrator of the testator’s estate but due to his death, he was succeeded by William Cabrera, who was appointed by RTC which is already the probate court.

PETITIONERS: The petitioners assail to the allowance of the testator’s will on the ground that it was not executed in accordance with all the requisites of law since the testator was already in a poor state of health such that he could not have possibly executed the same. Petitioners likewise contend that the will is null and void because its attestation clause is fatally defective since it fails to specifically state that the instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in the presence of the testator and of one another.

RESPONDENTS: The respondent, on the other hand, argue that Mateo was of sound and disposing mind and in good health when he executed his will. Further, they also contend that the witnesses attested and signed the will in the presence of the testator and of each other.

Issues:

1. Whether or not the attestation clause in the last will of Mateo Caballero is fatally defective such that whether or not it affects the validity of the will.

2. Whether or not the attestation clause complies with the substantial compliance pursuant to Article 809 of the Civil Code.

Held:

1. An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and to the manner of the execution of the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses; it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. Under the 3rd paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, should state:

1. The number of pages used upon which the will is written;

2. That the testator signed, or expressly cause another to sign, the will and every page thereof in the presence of the attesting witnesses; and

3. That the attesting witnesses witnessed the signing by the testator of the will and all its pages, and that the said witnesses also signed the will and every page thereof in the presence of the testator and of one another.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will in the presence of the testator and of one another. “Attestation” and “subscription” differ in meaning. Attestation is the act of sense, while subscription is the act of the hand. The attestation clause herein assailed is that while it recites that the testator indeed signed the will and all its pages in the presence of the three attesting witnesses and states as well the number of pages that were used, the same does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. What is then 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.

2. 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 admitted to probate. Petitioners are correct in pointing out that the defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in Article 809 of the Civil Code:

In the absence of bad faith, forgery, or fraud or undue and improper pressure and influence, defects and imperfection in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

The defects and imperfection must only be with respect to the form of the attestation or the language employed therein. Such defects or imperfection would not render a will invalid should it be proved that the will was really executed and attested in compliance with Article 805.

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These considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. In such a situation, the defect is not only in the form or language of the attestation clause but the total absence of a specific element required by Article 805 to be specifically stated in the attestation clause of a will. That is precisely the defect complained of in the present case since there is no plausible way by which it can be read into the questioned attestation clause statement, or an implication thereof, that the attesting witness did actually bear witness to the signing by the testator of the will and all of its pages and that said instrumental witnesses also signed the will and every page thereof in the presence of the testator and of one another.

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of the said decedent.

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