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G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOSCABALLERO, 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, JESUSCANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,petitioners,vs.HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of theEstate of Mateo Caballero,respondents.Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO,J.:Presented for resolution by this Court in the present petition for review on certiorariisthe issue of whether or not the attestation clause contained in the last will and testamentof the late Mateo Caballero complies with the requirements of Article 805, in relation to

Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without anychildren and already in the twilight years of his life, executed a last will and testament athis residence in Talisay, Cebu before three attesting witnesses, namely, CiprianoLabuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assistedby his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in thepreparation of that last will.1It was declared therein, among other things, that the testator wasleaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, AngelAbatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom donot appear to be related to the testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketedas Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of

Cebu seeking the probate of his last will and testament. The probate court set thepetition for hearing on August 20, 1979 but the same and subsequent scheduledhearings were postponed for one reason to another. On May 29, 1980, the testatorpassed away before his petition could finally be heard by the probate court. 3On February25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as specialadministrator of the testator's estate, the estimated value of which was P24,000.00, and he was soappointed by the probate court in its order of March 6, 1981. 4


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Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,instituted a second petition, entitled "In the Matter of the Intestate Estate of MateoCaballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of theaforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners hadtheir said petition intestate proceeding consolidated with Special Proceeding No. 3899-

R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate ofthe Testator's will and the appointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known asBranch XV of the Regional Trial Court of Cebu, appointed William Cabrera as specialadministrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for thereturn of the records of Special Proceeding No. 3965-R to the archives since the testateproceeding for the probate of the will had to be heard and resolved first. On March 26,1984 the case was reraffled and eventually assigned to Branch XII of the Regional TrialCourt of Cebu where it remained until the conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitionersappeared as oppositors and objected to the allowance of the testator's will on theground that on the alleged date of its execution, the testator was already in the poorstate of health such that he could not have possibly executed the same. Petitionerslikewise reiterated the issue as to the genuineness of the signature of the testatortherein.7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notarypublic Atty. Filoteo Manigos, testified that the testator executed the will in question in

their presence while he was of sound and disposing mind and that, contrary to theassertions of the oppositors, Mateo Caballero was in good health and was not undulyinfluenced in any way in the execution of his will. Labuca also testified that he and theother witnesses attested and signed the will in the presence of the testator and of eachother. The other two attesting witnesses were not presented in the probate hearing asthe had died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in question asthe last will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcomethe positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly toldthe Court that indeed Mateo Caballero executed the Last Will and Testament nowmarked Exhibit "C" on December 5, 1978. Moreover, the fact that it was MateoCaballero who initiated the probate of his Will during his lifetime when he caused thefiling of the original petition now marked Exhibit "D" clearly underscores the fact that thiswas indeed his Last Will. At the start, counsel for the oppositors manifested that he


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would want the signature of Mateo Caballero in Exhibit "C" examined by a handwritingexpert of the NBI but it would seem that despite their avowal and intention for theexamination of this signature of Mateo Caballero in Exhibit "C", nothing came out of itbecause they abandoned the idea and instead presented Aurea Caballero and HelenCaballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament ofMateo Caballero and that it was executed in accordance with all the requisites of thelaw.9

Undaunted by the said judgment of the probate court, petitioners elevated the case inthe Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will inquestion is null and void for the reason that its attestation clause is fatally defectivesince it fails to specifically state that the instrumental witnesses to the will witnessed thetestator signing the will in their presence and that they also signed the will and all the

pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision10affirming that of the trialcourt, and ruling that the attestation clause in the last will of Mateo Caballero substantially complies withArticle 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be consideredas having substantialy complied with the requirements of Art. 805 of the Civil Code.What appears in the attestation clause which the oppositors claim to be defective is "wedo certify that the testament was read by him and the attestator, Mateo Caballero, haspublished unto us the foregoing will consisting of THREE PAGES, including the

acknowledgment, each page numbered correlatively in letters of the upper part of eachpage, as his Last Will and Testament,and he has signed the same and every pagethereof, on the spaces provided for his signature and on the left hand margin in the

presence of the said testator and in the presence of each and all of us(emphasissupplied).

To our thinking, this is sufficient compliance and no evidence need be presented toindicate the meaning that the said will was signed by the testator and by them (thewitnesses) in the presence of all of them and of one another. Or as the language of thelaw would have it that the testator signed the will "in the presence of the instrumental

witnesses, and that the latter witnessed and signed the will and all the pages thereof inthe presence of the testator and of one another." If not completely or ideally perfect inaccordance with the wordings of Art. 805 but (sic) the phrase as formulated is insubstantial compliance with the requirement of the law."11

Petitioners moved for the reconsideration of the said ruling of respondent court, but thesame was denied in the latter's resolution of January 14, 1992,12hence this appeal now


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before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accordwith the law and settled jurisprudence on the matter and are now questioning once more, on the sameground as that raised before respondent court, the validity of the attestation clause in the last will ofMateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some

prefatory observations which we feel should be made in aid of the rationale for ourresolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted,with the formalities prescribed by law, to control to a certain degree the disposition of hisestate after his death.13Under the Civil Code, there are two kinds of wills which a testator mayexecute.14the first kind is the ordinary or attested will, the execution of which is governed by Articles 804to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof

by the testator himself or by the testator's name written by some other person in hispresence, and by his express direction, and attested and subscribed by three or morecredible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumentalwitnesses of the will, shall also sign, as aforesaid, each and every page thereof, exceptthe last, on the left margin, and all the pages shall be numbered correlatively in lettersplaced on the upper part of each page.

The attestation should state the number of pages used upon which the will is written,and the fact that the testator signed the will and every page thereof, or caused some

other person to write his name, under his express direction, in the presence of theinstrumental witnesses, and that the latter witnessed and signed the will and all thepages thereof in the presence of the testator and of one another.

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

In addition, the ordinary will must be acknowledged before a notary public by a testatorand the attesting witness.15hence it is likewise known as notarial will. Where the attestator is deaf ordeaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, heshould designate two persons who would read the will and communicate its contents to him in apracticable manner. On the other hand, if the testator is blind, the will should be read to him twice; once,by anyone of the witnesses thereto, and then again, by the notary public before whom it isacknowledged.16

The other kind of will is the holographic will, which Article 810 defines as one that isentirely written, dated, and signed by the testator himself. This kind of will, unlike theordinary type, requires no attestation by witnesses. A common requirement in both


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kinds of will is that they should be in writing and must have been executed in alanguage or dialect known to the testator.17

However, in the case of an ordinary or attested will, its attestation clause need not bewritten in a language or dialect known to the testator since it does not form part of the

testamentary disposition. Furthermore, the language used in the attestation clauselikewise need not even be known to the attesting witnesses. 18The last paragraph of Article805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attestingwitnesses certify that the instrument has been executed before them and to the mannerof the execution the same.19It is a separate memorandum or record of the facts surrounding theconduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliancewith the essential formalities required by law has been observed.20It is made for the purpose ofpreserving in a permanent form a record of the facts that attended the execution of a particular will, sothat in case of failure of the memory of the attesting witnesses, or other casualty, such facts may still be

proved.21

Under the third paragraph of Article 805, such a clause, the complete lack of whichwould result in the invalidity of the will,22should state (1)the number of the pages useduponwhich the will is written; (2) that thetestator signed, or expressly caused another to sign, the will andevery page thereofin the presence of the attesting witnesses; and (3) that theattesting witnesseswitnessed the signing by the testator of the willand all its pages,andthatsaidwitnesses also signed thewilland every page thereofin the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on whichthe will is written is to safeguard against possible interpolation or omission of one or

some of its pages and to prevent any increase or decrease in the pages;23

whereas thesubscription of the signature of the testator and the attesting witnesses is made for the purpose ofauthentication and identification, and thus indicates that the will is the very same instrument executed bythe testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the dueexecution of the will as embodied in the attestation clause. 25The attestation clause, therefore,provide strong legal guaranties for the due execution of a will and to insure the authenticity thereof. 26As itappertains only to the witnesses and not to the testator, it need be signed only by them. 27Where it is leftunsigned, it would result in the invalidation of the will as it would be possible and easy to add the clauseon a subsequent occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiringthe formalities to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law onwills in this Project consists in the liberalization of the manner of their execution with theend in view of giving the testator more freedom in expressing his last wishes, but with


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sufficient safeguards and restrictions to prevent the commission of fraud and theexercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities inthe execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows that it iscomprised of three sheets all of which have been numbered correlatively, with the leftmargin of each page thereof bearing the respective signatures of the testator and thethree attesting witnesses. The part of the will containing the testamentary dispositions isexpressed in the Cebuano-Visayan dialect and is signed at the foot thereof by thetestator. The attestation clause in question, on the other hand, is recited in the Englishlanguage and is likewise signed at the end thereof by the three attesting witnesseshereto.30Since it is the proverbial bone of contention, we reproduce it again for facility of reference:

We, the undersigned attesting Witnesses, whose Residences and postal addressesappear on the Opposite of our respective names, we do hereby certify that theTestament was read by him and the testator, MATEO CABALLERO; has published untous the foregoing Will consisting of THREE PAGES, including the Acknowledgment,each page numbered correlatively in the letters on the upper part of each page, as hisLast Will and Testament and he has the same and every page thereof, on the spacesprovided for his signature and on the left hand margin, in the presence of the saidtestator and in the presence of each and all of us.

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 senses, while subscription is theact of the hand. The former is mental, the latter mechanical, and to attest a will is toknow that it was published as such, and to certify the facts required to constitute anactual and legal publication; but to subscribe a paper published as a will is only to writeon the same paper the names of the witnesses, for the sole purpose of identification. 31

InTaboada vs. Rizal,32we clarified that attestation consists in witnessing the testator's execution ofthe will in order to see and take note mentally that those things are done which the statute requires for theexecution of a will and that the signature of the testator exists as a fact. On the other hand, subscription isthe signing of the witnesses' names upon the same paper for the purpose of identification of such paper

as the will which was executed by the testator. As it involves a mental act, there would be no means,therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signedin the presence of the testator and of each other unless this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention ofthe express requirements of the third paragraph of Article 805 of the Civil Code forattestation clauses, fails to specifically state the fact that the attesting witnesses thetestator sign the will and all its pages in their presence and that they, the witnesses,


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likewise signed the will and every page thereof in the presence of the testator and ofeach other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailedis the fact that while it recites that the testator indeed signed the will and all its pages in

the presence of the three attesting witnesses and states as well the number of pagesthat were used, the same does not expressly state therein the circumstance that saidwitnesses subscribed their respective signatures to the will in the presence of thetestator and of each other.

The phrase "and he has signed the same and every page thereof, on the spacesprovided for his signature and on the left hand margin," obviously refers to the testatorand not the instrumental witnesses as it is immediately preceded by the words "as hisLast Will and Testament." On the other hand, although the words "in the presence of thetestator and in the presence of each and all of us" may, at first blush, appear to likewise

signify and refer to the witnesses, it must, however, be interpreted as referring only tothe testator signing in the presence of the witnesses since said phrase immediatelyfollows the words "hehas signed the same and every page thereof, on the spacesprovided forhissignature and on the left hand margin." What is then clearly lacking, inthe final logical analysis , isthe statement that the witnesses signed the will and every

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

It is our considered view that the absence of that statement required by law is a fataldefect or imperfection which must necessarily result in the disallowance of the will thatis here sought to be admitted to probate. Petitioners are correct in pointing out that the

aforestated defect in the attestation clause obviously cannot be characterized as merelyinvolving the form of the will or the language used therein which would warrant theapplication of the substantial compliance rule, as contemplated in the pertinent provisionthereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressureand influence, defects and imperfections in theformof attestation or inthelanguageused therein shall not render the will invalid if it is not proved that the will wasin fact executed and attested in substantial compliance with all the requirements ofarticle 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereofand at the left margin of each page by the three attesting witnesses, it certainly cannotbe conclusively inferred therefrom that the said witness affixed their respectivesignatures in the presence of the testator and of each other since, as petitionerscorrectly observed, the presence of said signatures only establishes the fact that it wasindeed signed, but it does not prove that the attesting witnesses did subscribe to the will


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in the presence of the testator and of each other. The execution of a will is supposed tobe one act so that where the testator and the witnesses sign on various days oroccasions and in various combinations, the will cannot be stamped with the imprimaturof effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34regarding Article 809,

wherein he urged caution in the application of the substantial compliance rule therein, is correct andshould be applied in the case under consideration, as well as to future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be supplied by anexamination of the will itself: whether all the pages are consecutively numbered;whether the signatures appear in each and every page; whether the subscribingwitnesses are three or the will was notarized. All theses are facts that the will itself canreveal, and defects or even omissions concerning them in the attestation clause can besafely disregarded. But the total number of pages, and whether all persons required to

sign did so in the presence of each other must substantially appear in the attestationclause, being the only check against perjury in the probate proceedings. (Emphasisours.)

3. We stress once more that under Article 809, the defects and imperfections must onlybe with respect to the form of the attestation or the language employed therein. Suchdefects or imperfections would not render a will invalid should it be proved that the willwas really executed and attested in compliance with Article 805. In this regard,however, the manner of proving the due execution and attestation has been held to belimited to merely an examination of the will itself without resorting to evidencealiunde,

whether oral or written.The foregoing considerations do not apply where the attestation clause totally omits thefact that the attesting witnesses signed each and every page of the will in the presenceof the testator and of each other.35In such a situation, the defect is not only in the form orlanguage of the attestation clause but the total absence of a specific element required by Article 805 to bespecifically stated in the attestation clause of a will. That is precisely the defect complained of in thepresent case since there is no plausible way by which we can read into the questioned attestation clausestatement, or an implication thereof, that the attesting witness did actually bear witness to the signing bythe testator of the will and all of its pages and that said instrumental witnesses also signed the will andevery page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked orrelied on by respondents since it presupposes that the defects in the attestation clausecan be cured or supplied by the text of the will or a consideration of matters apparenttherefrom which would provide the data not expressed in the attestation clause or fromwhich it may necessarily be gleaned or clearly inferred that the acts not stated in theomitted textual requirements were actually complied within the execution of the will. Inother words, defects must be remedied by intrinsic evidence supplied by the will itself.


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In the case at bar, contrarily, proof of the acts required to have been performed by theattesting witnesses can be supplied by only extrinsic evidence thereof, since an overallappreciation of the contents of the will yields no basis whatsoever from with such factsmay be plausibly deduced. What private respondent insists on are the testimonies of hiswitnesses alleging that they saw the compliance with such requirements by the

instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsicevidence to prove the same and would accordingly be doing by the indirection what inlaw he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence ofviews as to which manner of interpretation should be followed in resolving issuescentering on compliance with the legal formalities required in the execution of wills. Theformal requirements were at that time embodied primarily in Section 618 of Act No. 190,the Code of Civil Procedure. Said section was later amended by Act No. 2645, but theprovisions respecting said formalities found in Act. No. 190 and the amendment thereto

were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down inthe case ofAbangan vs. Abangan,36where it was held that the object of the solemnitiessurrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution ofwills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this subjectshould be interpreted in such a way as to attain these primordial ends. Nonetheless, it was alsoemphasized that one must not lose sight of the fact that it is not the object of the law to restrain and curtailthe exercise of the right to make a will, hence when an interpretation already given assures such ends,any other interpretation whatsoever that adds nothing but demands more requisites entirely unnecessary,useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs.

Garcia,37Aldaba vs. Roque,38Unson vs. Abella,39Pecson vs. Coronel,40Fernandez vs. Vergel de Dios,et al.,41andNayve vs. Mojal, et al. 42all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalitiesthat should be observed in the execution of wills are mandatory in nature and are to bestrictly construed was followed in the subsequent cases ofIn the Matter of the Estate ofSaguinsin,43In re Will of Andrada,44Uy Coque vs. Sioca,45In re Estate of Neumark,46andSano vs.Quintana.47

Gumban vs. Gorecho, et al.,48provided the Court with the occasion to clarify the seeminglyconflicting decisions in the aforementioned cases. In said case ofGumban, the attestation clause had

failed to state that the witnesses signed the will and each and every page thereof on the left margin in thepresence of the testator. The will in question was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned, appellantsrely on a series of cases of this court beginning with (I)n the Matter of the (E)state ofSaguinsin ([1920], 41 Phil., 875), continuing withIn reWill of Andrada [1921], 42 Phil.,180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In reEstate of Neumark


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([1923], 46 Phil., 841), and ending withSano vs. Quintana([1925], 48 Phil., 506).Appellee counters with the citation of a series of cases beginning withAbangan vs.Abangan([1919], 40 Phil., 476), continuing throughAldaba vs. Roque([1922], 43 Phil.,378), andFernandez vs. Vergel de Dios([1924], 46 Phil., 922), and culminatinginNayve vs. Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our task is to

contrast and, if possible, conciliate the last two decisions cited by opposing counsel,namely, those ofSano vs. Quintana,supra, andNayve vs. Mojal and Aguilar,supra.

In the case ofSano vs. Quintana,supra, it was decided that an attestation clause whichdoes not recite that the witnesses signed the will and each and every page thereof onthe left margin in the presence of the testator is defective, and such a defect annuls thewill. The case ofUy Coque vs. Sioca,supra, was cited, but the case ofNayve vs. Mojaland Aguilar,supra, was not mentioned. In contrast, is the decision inNayve vs. Mojaland Aguilar,supra, wherein it was held that the attestation clause must estate the factthat the testator and the witnesses reciprocally saw the signing of the will, for such an

act cannot be proved by the mere exhibition of the will, if it is not stated therein. It wasalso held that the fact that the testator and the witnesses signed each and every page ofthe will can be proved also by the mere examination of the signatures appearing on thedocument itself, and the omission to state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admitinconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal andQuintana decisions. They are fundamentally at variance. If we rely on one, we affirm. Ifwe rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may bementioned. In the first place, the Mojal, decision was concurred in by only four membersof the court, less than a majority, with two strong dissenting opinions; the Quintanadecision was concurred in by seven members of the court, a clear majority, with oneformal dissent. In the second place, the Mojal decision was promulgated in December,1924, while the Quintana decision was promulgated in December, 1925; the Quintanadecision was thus subsequent in point of time. And in the third place, the Quintanadecision is believed more nearly to conform to the applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The law of the

case is here found in section 61 of the Code of Civil Procedure as amended by Act No.2645, and in section 634 of the same Code, as unamended. It is in part provided insection 61, as amended that "Nowill. . .shall be valid. . .unless. . .." It is furtherprovided in the same section that "The attestationshallstate the number of sheets orpages used, upon which the will is written, and the fact that the testator signed the willand every page thereof, or caused some other person to write his name, under hisexpress direction, in the presence of three witnesses, and the latter witnessed and


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signed the will and all pages thereof in the presence of the testator and of each other."Codal section 634 provides that "The willshallbe disallowed in either of the followingcase: 1. Ifnotexecuted andattestedas in this Act provided." The law not alone carefullymakes use of the imperative, but cautiously goes further and makes use of the negative,to enforce legislative intention. It is not within the province of the courts to disregard the

legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case ofSano vs. Quintana,supra, and, to theextent necessary, modify the decision in the case ofNayve vs. Mojal and Aguilar,supra.(Emphases in the original text).

But after theGumbanclarificatory pronouncement, there were decisions of the Courtthat once more appeared to revive the seeming diversity of views that was earlierthreshed out therein. The cases ofQuinto vs. Morata,49Rodriguez vs. Alcala,50Enchevarria vs.Sarmiento,51andTestate Estate of Toray52went the way of the ruling as restated inGumban. ButDe

Gala vs. Gonzales, et al.,

53Rey vs. Cartagena,

54De Ticson vs. De Gorostiza,

55Sebastian vs.Panganiban,56Rodriguez vs. Yap,57Grey vs. Fabia,58Leynez vs. Leynez,59Martir vs. Martir,60Alcala vs.

De Villa,61Sabado vs.Fernandez,62Mendoza vs. Pilapil,63andLopez vs. Liboro,64veered away from the strict interpretationrule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of theundeniable inclination towards a liberal construction, recommended the codification ofthe substantial compliance rule, as it believed this rule to be in accord with the moderntendency to give a liberal approach to the interpretation of wills. Said rule thus becamewhat is now Article 809 of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, inaccordance with the formalities prescribed by Section 618 of the Code of CivilProcedure as amended by Act No. 2645. The Supreme Court of the Philippines hadpreviously upheld the strict compliance with the legal formalities and had even said thatthe provisions of Section 618 of the Code of Civil Procedure, as amended regarding thecontents of the attestation clause were mandatory, and non-compliance therewithinvalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions necessarilyrestrained the freedom of the testator in disposing of his property.

However, in recent years the Supreme Court changed its attitude and has become moreliberal in the interpretation of the formalities in the execution of wills. This liberal view isenunciated in the cases ofRodriguez vs. Yap, G.R. No. 45924, May 18, 1939;Leynezvs. Leynez, G.R. No. 46097, October 18, 1939;Martir vs. Martir, G.R. No. 46995, June21, 1940; andAlcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back tothe original provisions of Section 618 of the Code of Civil Procedure before its


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amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislativedeclaration and to attain the main objective of the proposed Code in the liberalization ofthe manner of executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure

and influence, defects and imperfections in the form of attestation or in the languageused therein shall not render the will invalid if it is proved that the will was in factexecuted and attested in substantial compliance with all the requirements of article829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66"does not offer any puzzle ordifficulty, nor does it open the door to serious consequences. The later decisions do tell us when andwhere to stop; they draw the dividing line with precision. They do not allow evidence aliundeto fill a voidin any part of the document or supply missing details that should appear in the will itself. They only permita probe into the will, an exploration into its confines, to ascertain its meaning or to determine theexistence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty

and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can besupplied by an examination of the will itself, without the need of resorting to extrinsicevidence, will not be fatal and, correspondingly, would not obstruct the allowance toprobate of the will being assailed. However, those omissions which cannot be suppliedexcept by evidencealiundewould result in the invalidation of the attestation clause andultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of

respondent court is hereby REVERSED and SET ASIDE. The courta quois accordinglydirected to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for theProbate of the Last Will and Testament of Mateo Caballero) and to REVIVE SpecialProceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as anactive case and thereafter duly proceed with the settlement of the estate of the saiddecedent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.


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G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,vs.JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercadodated January 3, 1943. The will is written in the Ilocano dialect and contains the followingattestation clause:

We, the undersigned, by these presents to declare that the foregoing testament ofAntero Mercado was signed by himself and also by us below his name and of this

attestation clause and that of the left margin of the three pages thereof. Page three thecontinuation of this attestation clause; this will is written in Ilocano dialect which isspoken and understood by the testator, and it bears the corresponding number in letterwhich compose of three pages and all them were signed in the presence of the testatorand witnesses, and the witnesses in the presence of the testator and all and each andevery one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, onethousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANOEVANGELISTA

(Sgd.) "ROSENDACORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of AnteroMercado, followed below by "A reugo del testator" and the name of Florentino Javier. AnteroMercado is alleged to have written a cross immediately after his name. The Court of Appeals,reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestationclause failed (1) to certify that the will was signed on all the left margins of the three pages and

at the end of the will by Atty. Florentino Javier at the express request of the testator in thepresence of the testator and each and every one of the witnesses; (2) to certify that after thesigning of the name of the testator by Atty. Javier at the former's request said testator haswritten a cross at the end of his name and on the left margin of the three pages of which the willconsists and at the end thereof; (3) to certify that the three witnesses signed the will in all thepages thereon in the presence of the testator and of each other.


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In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercadocaused Atty. Florentino Javier to write the testator's name under his express direction, asrequired by section 618 of the Code of Civil Procedure. The herein petitioner (who is appealingby way of certiorari from the decision of the Court of Appeals) argues, however, that there is noneed for such recital because the cross written by the testator after his name is a sufficient

signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is thatthe cross is as much a signature as a thumbmark, the latter having been held sufficient by thisCourt in the cases of De Gala vs.Gonzales and Ona, 53 Phil., 104; Dolar vs.Diancin, 55 Phil.,479; Payad vs.Tolentino, 62 Phil., 848; Neyra vs.Neyra, 76 Phil., 296 and Lopez vs.Liboro, 81Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of AnteroMercado or even one of the ways by which he signed his name. After mature reflection, we arenot prepared to liken the mere sign of the cross to a thumbmark, and the reason is obvious. Thecross cannot and does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in theattestation clause as to the signing of the will by the testator in the presence of the witnesses,and by the latter in the presence of the testator and of each other.

Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.


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G.R. No. L-36033 November 5, 1982IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEAPEREZ, (deceased): APOLONIO TABOADA,petitioner,vs.HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,

Maasin),respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR.J.:This is a petition for review of the orders issued by the Court of First Instance ofSouthern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of

the Petition for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada,Petitioner", which denied the probate of the will, the motion for reconsideration and themotion for appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached thealleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of two pages. The first page contains the entiretestamentary dispositions and is signed at the end or bottom of the page by the testatrixalone and at the left hand margin by the three (3) instrumental witnesses. The secondpage which contains the attestation clause and the acknowledgment is signed at the

end of the attestation clause by the three (3) attesting witnesses and at the left handmargin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement ofpublication, the trial court commissioned the branch clerk of court to receive thepetitioner's evidence. Accordingly, the petitioner submitted his evidence and presentedVicente Timkang, one of the subscribing witnesses to the will, who testified on itsgenuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned

order denying the probate of the will of Dorotea Perez for want of a formality in itsexecution. In the same order, the petitioner was also required to submit the names ofthe intestate heirs with their corresponding addresses so that they could be properlynotified and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestationand/or motion,ex partepraying for a thirty-day period within which to deliberate on any


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step to be taken as a result of the disallowance of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with theiraddresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the

will. However, the motion together with the previous manifestation and/or motion couldnot be acted upon by the Honorable Ramon C. Pamatian due to his transfer to his newstation at Pasig, Rizal. The said motions or incidents were still pending resolution whenrespondent Judge Avelino S. Rosal assumed the position of presiding judge of therespondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as themanifestation and/or motion filedex parte. In the same order of denial, the motion for

the appointment of special administrator was likewise denied because of the petitioner'sfailure to comply with the order requiring him to submit the names of' the intestate heirsand their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require thatthe testatrix and all the three instrumental and attesting witnesses signat the endof thewill and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by thetestator himself or by the testator's name written by some other person in his presence,and by his express direction, and attested and subscribed by three or more crediblewitnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumentalwitnesses of the will, shall also sign, as aforesaid, each and every page thereof, exceptthe last, on the left margin, and all the pages shall be numbered correlatively in lettersplaced on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, andthe fact that the testator signed the will and every page thereof, or caused some otherperson to write his name, under his express direction, in the presence of theinstrumental witnesses, and that the lacier witnesses and signed the will and the pagesthereof in the presence of the testator and of one another.


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

The respondent Judge interprets the above-quoted provision of law to require that, for anotarial will to be valid, it is not enough that only the testatrix signs at the "end" but an

the three subscribing witnesses must also sign at the same place orat the end, in thepresence of the testatrix and of one another because the attesting witnesses to a willattest not merely the will itself but also the signature of the testator. It is not sufficientcompliance to sign the page, where the end of the will is found, at the left hand marginof that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does notmake it a condition precedent or a matter of absolute necessity for the extrinsic validityof the wig that the signatures of the subscribing witnesses should be specifically locatedat the end of the wig after the signature of the testatrix. He contends that it would be

absurd that the legislature intended to place so heavy an import on the space orparticular location where the signatures are to be found as long as this space orparticular location wherein the signatures are found is consistent with good faith and thehonest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signedat its end by the testator himself or by the testator's name written by another person inhis presence, and by his express direction, and attested and subscribed by three or

more credible witnesses in the presence of the testator and of one another.It must be noted that the law uses the termsattestedandsubscribedAttestationconsists in witnessing the testator's execution of the will in order to see and take notementally that those things are, done which the statute requires for the execution of a willand that the signature of the testator exists as a fact. On the other hand, subscription isthe signing of the witnesses' names upon the same paper for the purpose ofIdentification of such paper as the will which was executed by the testator. (Ragsdale v.Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that

the will in this case was subscribed in a manner which fully satisfies the purpose ofIdentification.

The signatures of the instrumental witnesses on the left margin of the first page of thewill attested not only to the genuineness of the signature of the testatrix but also the dueexecution of the will as embodied in the attestation clause.


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While perfection in the drafting of a will may be desirable, unsubstantial departure fromthe usual forms should be ignored, especially where the authenticity of the will is notassailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective

permeating the provisions on the law on wills in this project consists in the liberalizationof the manner of their execution with the end in view of giving the testator more freedomin expressing his last wishes but with sufficient safeguards and restrictions to preventthe commission of fraud and the exercise of undue and improper pressure and influenceupon the testator. This objective is in accord with the modern tendency in respect to theformalities in the execution of a will" (Report of the Code commission,p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were notfor the defect in the place of signatures of the witnesses, he would have found thetestimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the presentcase when the instrumental witnesses signed at the left margin of the sole page whichcontains all the testamentary dispositions, especially so when the will was properlyIdentified by subscribing witness Vicente Timkang to be the same will executed by thetestatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed tostate the number of pages used in writing the will. This would have been a fatal defectwere it not for the fact that, in this case, it is discernible from the entire wig that it is

really and actually composed of only two pages duly signed by the testatrix and herinstrumental witnesses. As earlier stated, the first page which contains the entirety ofthe testamentary dispositions is signed by the testatrix at the end or at the bottom whilethe instrumental witnesses signed at the left margin. The other page which is marked as"Pagina dos" comprises the attestation clause and the acknowledgment. Theacknowledgment itself states that "This Last Will and Testament consists of two pagesincluding this page".

InSingson v. Florentino, et al.(92 Phil. 161, 164), this Court made the followingobservations with respect to the purpose of the requirement that the attestation clause

must state the number of pages used:The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.2645, which requires that the attestation clause shall state the number of pages orsheets upon which the win is written, which requirement has been held to be mandatoryas an effective safeguard against the possibility of interpolation or omission of some ofthe pages of the will to the prejudice of the heirs to whom the property is intended to bebequeathed (In re will of Andrada, 42 Phil., 180; Uy Coquevs. Navas L. Sioca, 43 Phil.


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405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.Sarmiento, 66 Phil. 611). Theratio decidendiof these cases seems to be that theattestation clause must contain a statement of the number of sheets or pagescomposing the will and that if this is missing or is omitted, it will have the effect ofinvalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by

a consideration or examination of the will itself. But here the situation is different. Whilethe attestation clause does not state the number of sheets or pages upon which the willis written, however, the last part of the body of the will contains a statement that it iscomposed of eight pages, which circumstance in our opinion takes this case out of therigid rule of construction and places it within the realm of similar cases where a broadand more liberal view has been adopted to prevent the will of the testator from beingdefeated by purely technical considerations.

Icasiano v. Icasiano(11 SCRA 422, 429) has the following ruling which applies a similarliberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that thetestatrix and two other witnesses did sign the defective page, but also by its bearing thecoincident imprint of the seal of the notary public before whom the testament wasratified by testatrix and all three witnesses. The law should not be so strictly and literallyinterpreted as to penalize the testatrix on account of the inadvertence of a singlewitness over whose conduct she had no control where the purpose of the law toguarantee 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 thefun observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. Vs.

Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) 'witnesses maysabotage the will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondentcourt which denied the probate of tile will, the motion for reconsideration of the denial ofprobate, and the motion for appointment of a special administrator are set aside. Therespondent court is ordered to allow the probate of the wig and to conduct furtherproceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED


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Taboada vs. Rosal GR L-36033. November 5, 1982

FACTSPetitioner Apolonio Taboada filed a petition for probate of the will of the late Dorotea perez. The willconsisted of two pages, the first page containing all the testamentary dispositions of the testator and was signed atthe end or bottom of the page by the testatrix alone and at the left hand margin by the three instrumental witnesses.The second page consisted of the attestation clause and the acknowledgment was signed at the end of the

attestation clause by the three witnesses and at the left hand margin by the testatrix. The trial court disallowed the willfor want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix,while the three witnesses only signed at the left hand margin of the page. The judge opined that compliance with theformalities of the law required that the witnesses also sign at the end of the will because the witnesses attest not onlythe will itself but the signature of the testatrix. Hence, this petition.

ISSUEWas the object of attestation and subscription fully when the instrumental witnesses signed at the leftmargin of the sole page which contains all the testamentary dispositions?

HELD

(SHORT RULING)

On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied inthe present case when the instrumental witnesses signed at the left margin of the sole page which contains all thetestamentary dispositions, especially so when the will was properly identified by a subscribing witness to be the samewill executed by the testatrix; and b) that the failure of the attestation clause to state the number of pages used inwriting the will would have been a fatal defect were it not for the fact that it is really and actually composed of only twopages duly signed by the testatrix and her instrumental witnesses.

(LONG RULING [VERBATIM])

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testatorhimself or by the testator's name written by another person in his presence, and by his express direction, and attestedand subscribed by three or more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator'sexecution of the will in order to see and take note mentally that those things are done which the statute requires forthe execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is thesigning of the witnesses' names upon the same paper for the purpose of identification of such paper as the will whichwas executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).

The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to thegenuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestationclause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should beignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).


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The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the lawon wills in this project consists in the liberalization of the manner of their execution with the end in view of giving thetestator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent thecommission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objectiveis in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the CodeCommission, p. 103).

The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumentalwitnesses signed at the left margin of the sole page which contains all the testamentary dispositions, especially sowhen the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by thetestatrix. There was no question of fraud or substitution behind the questioned order


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G.R. No. L-13431 November 12, 1919

In re will of Ana Abangan.GERTRUDIS ABANGAN,executrix-appellee,vs.

ANASTACIA ABANGAN, ET AL.,opponents-appellants.

Filemon Sotto for appellants.

M. Jesus Cuenco for appellee.

AVANCEA,J.:On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan'swill executed July, 1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of whichcontains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (inthe name and under the direction of the testatrix) and by three witnesses. The following sheetcontains only the attestation clause duly signed at the bottom by the three instrumentalwitnesses. Neither of these sheets is signed on the left margin by the testatrix and the threewitnesses, nor numbered by letters; and these omissions, according to appellants' contention,are defects whereby the probate of the will should have been denied. We are of the opinion thatthe will was duly admitted to probate.

In requiring that each and every sheet of the will should also be signed on the left margin by thetestator and three witnesses in the presence of each other, Act No. 2645 (which is the one

applicable in the case) evidently has for its object (referring to the body of the will itself) to avoidthe substitution of any of said sheets, thereby changing the testator's dispositions. But whenthese dispositions are wholly written on only one sheet signed at the bottom by the testator andthree witnesses (as the instant case), their signatures on the left margin of said sheet would becompletely purposeless. In requiring this signature on the margin, the statute took intoconsideration, undoubtedly, the case of a will written on several sheets and must have referredto the sheets which the testator and the witnesses do not have to sign at the bottom. A differentinterpretation would assume that the statute requires that this sheet, already signed at thebottom, be signed twice. We cannot attribute to the statute such an intention. As thesesignatures must be written by the testator and the witnesses in the presence of each other, itappears that, if the signatures at the bottom of the sheet guaranties its authenticity, another

signature on its left margin would be unneccessary; and if they do not guaranty, samesignatures, affixed on another part of same sheet, would add nothing. We cannot assume thatthe statute regards of such importance the place where the testator and the witnesses must signon the sheet that it would consider that their signatures written on the bottom do not guarantythe authenticity of the sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered correlatively in letters placedon the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know


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whether any sheet of the will has been removed. But, when all the dispositive parts of a will arewritten on one sheet only, the object of the statute disappears because the removal of thissingle sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without consideringwhether or not this clause is an essential part of the will, we hold that in the one accompanyingthe will in question, the signatures of the testatrix and of the three witnesses on the margin andthe numbering of the pages of the sheet are formalities not required by the statute. Moreover,referring specially to the signature of the testatrix, we can add that same is not necessary in theattestation clause because this, as its name implies, appertains only to the witnesses and not tothe testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two sheets the first of whichcontains all the testamentary dispositions and is signed at the bottom by the testator and threewitnesses and the second contains only the attestation clause and is signed also at the bottomby the three witnesses, it is not necessary that both sheets be further signed on their margins by

the testator and the witnesses, or be paged.The object of the solemnities surrounding the execution of wills is to close the door against badfaith and fraud, to avoid substitution of wills and testaments and to guaranty their truth andauthenticity. Therefore the laws on this subject should be interpreted in such a way as to attainthese primordal ends. But, on the other hand, also one must not lose sight of the fact that it isnot the object of the law to restrain and curtail the exercise of the right to make a will. So whenan interpretation already given assures such ends, any other interpretation whatsoever, thatadds nothing but demands more requisites entirely unnecessary, useless and frustative of thetestator's last will, must be disregarded.lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knewthe dialect in which the will is written. But the circumstance appearing in the will itself that samewas executed in the city of Cebu and in the dialect of this locality where the testatrix was aneighbor is enough, in the absence of any proof to the contrary, to presume that she knew thisdialect in which this will is written.

For the foregoing considerations, the judgment appealed from is hereby affirmed with costsagainst the appellants. So ordered.


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G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. CELSO ICASIANO,petitioner-appellee, vs.NATIVIDAD ICASIANO and ENRIQUE ICASIANO,oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.

Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L.,J.:Appeal from an order of the Court of First Instance of Manila admitting to probate the documentand its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of JosefaVillacorte, deceased, and appointing as executor Celso Icasiano, the person named therein assuch.

This special proceeding was begun on October 2, 1958 by a petition for the allowance andadmission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte,deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice thereof tobe published for three (3) successive weeks, previous to the time appointed, in the newspaper"Manila chronicle", and also caused personal service of copies thereof upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and onNovember 10, 1958, she petitioned to have herself appointed as a special administrator, to

which proponent objected. Hence, on November 18, 1958, the court issued an order appointingthe Philippine Trust Company as special administrator.1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestationadopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; buton June 1, 1959, he filed a motion for the admission of an amended and supplemental petition,alleging that the decedent left a will executed in duplicate with all the legal requirements, andthat he was, on that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedlyfound only on or about May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano deGomez and Enrique Icasiano filed their joint opposition to the admission of the amended andsupplemental petition, but by order of July 20, 1959, the court admitted said petition, and on July30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter, the partiespresented their respective evidence, and after several hearings the court issued the orderadmitting the will and its duplicate to probate. From this order, the oppositors appealed directlyto this Court, the amount involved being over P200,000.00, on the ground that the same iscontrary to law and the evidence.


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The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City ofManila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a lastwill and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at PedroGuevara Street, Manila, published before and attested by three instrumental witnesses, namely:attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was

acknowledged by the testatrix and by the said three instrumental witnesses on the same datebefore attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the willwas actually prepared by attorney Fermin Samson, who was also present during the executionand signing of the decedent's last will and testament, together with former Governor EmilioRustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumentalwitnesses to the execution of the decedent's last will and testament, attorneys Torres andNatividad were in the Philippines at the time of the hearing, and both testified as to the dueexecution and authenticity of the said will. So did the Notary Public before whom the will wasacknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, whoactually prepared the document. The latter also testified upon cross examination that heprepared one original and two copies of Josefa Villacorte last will and testament at his house inBaliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining oneunsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with thefiling of the petition and marked as Exhibit "A" consists of five pages, and while signed at theend and in every page, it does not contain the signature of one of the attesting witnesses, Atty.Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amendedand supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her threeattesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of the will

and its duplicate were subscribed at the end and on the left margin of each and every pagethereof by the testatrix herself and attested and subscribed by the three mentioned witnesses inthe testatrix's presence and in that of one another as witnesses (except for the missingsignature of attorney Natividad on page three (3) of the original); that pages of the original andduplicate of said will were duly numbered; that the attestation clause thereof contains all thefacts required by law to be recited therein and is signed by the aforesaid attesting witnesses;that the will is written in the language known to and spoken by the testatrix that the attestationclause is in a language also known to and spoken by the witnesses; that the will was executedon one single occasion in duplicate copies; and that both the original and the duplicate copieswere duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June

2, 1956.Witness Natividad who testified on his failure to sign page three (3) of the original, admits thathe may have lifted two pages instead of one when he signed the same, but affirmed that pagethree (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of thetestatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the


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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 thetestatrix was deceived into adopting as her last will and testament the wishes of those who willstand to benefit from the provisions of the will, as may be inferred from the facts andcircumstances 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-factof the deceased and not enumerated or mentioned therein, while oppositors-appellants areenjoined not to look for other properties not mentioned in the will, and not to oppose the probateof it, on penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix signedboth original and duplicate copies (Exhibits "A" and "A-1", respectively) of the willspontaneously, on the same in the presence of the three attesting witnesses, the notary publicwho acknowledged the will; and Atty. Samson, who actually prepared the documents; that thewill and its duplicate were executed in Tagalog, a language known to and spoken by both thetestator and the witnesses, and read to and by the testatrix and Atty. Fermin Samson, together

before they were actually signed; that the attestation clause is also in a language known to andspoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. FelipeLogan, that the signatures of the testatrix appearing in the duplicate original were not written bythe same had which wrote the signatures in the original will leaves us unconvinced, not merelybecause it is directly contradicted by expert Martin Ramos for the proponents, but principallybecause of the paucity of the standards used by him to support the conclusion that thedifferences between the standard and questioned signatures are beyond the writer's range ofnormal scriptural variation. The expert has, in fact, used as standards only three othersignatures of the testatrix besides those affixed to the original of the testament (Exh. A); and wefeel that with so few standards the expert's opinion and the signatures in the duplicate could notbe those of the testatrix becomes extremely hazardous. This is particularly so since thecomparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences thatwould justify the charge of forgery, taking into account the advanced age of the testatrix, theevident variability of her signatures, and the effect of writing fatigue, the duplicate being signedright the original. These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questionedsignatures does not appear reliable, considering the standard and challenged writings wereaffixed to different kinds of paper, with different surfaces and reflecting power. On the whole,therefore, we do not find the testimony of the oppositor's expert sufficient to overcome that ofthe notary and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the United

States during the trial, did not testify).Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs aremore favored than others is proof of neither (seeIn reButalid, 10 Phil. 27; Bugnao vs. Ubag, 14Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason formaking a testament; otherwise, the decedent might as well die intestate. The testamentarydispositions that the heirs should not inquire into other property and that they should respect thedistribution made in the will, under penalty of forfeiture of their shares in the free part do not


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suffice to prove fraud or undue influence. They appear motivated by the desire to preventprolonged litigation which, as shown by ordinary experience, often results in a sizeable portionof the estate being diverted into the hands of non-heirs and speculators. Whether these clausesare valid or not is a matter to be litigated on another occassion. It is also well to note that, asremarked by the Court of Appeals inSideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue

influence are mutually repugnant and exclude each other; their joining as grounds for opposingprobate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signatureto one page of a testament, due to the simultaneous lifting of two pages in the course of signing,is not per se sufficient to justify denial of probate. Impossibility of substitution of this page isassured not only the fact that the 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 thetestament was ratified by testatrix and all three witnesses. The law should not be so strictly andliterally interpreted as to penalize the testatrix on account of the inadvertence of a single witnessover 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 deliberatedeviation existed, and the evidence on record attests to the full observance of the statutoryrequisites. Otherwise, as stated inVda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or theattestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight isshown by his own testimony as well as by the duplicate copy of the will, which bears a completeset of signatures in every page. The text of the attestation clause and the acknowledgmentbefore the Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of thestatutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite theliteral tenor of the law, this Court has held that a testament, with the only page signed at its footby testator and witnesses, but not in the left margin, could nevertheless be probated (Abanganvs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of thepages of a will, the failure to make 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 requiresatisfaction of the legal requirements in order to guard against fraud and bid faith but withoutundue 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 (Exh. A-1) is not entitled to probate. Since they opposed probate of original because itlacked one signature in its third page, it is easily discerned that oppositors-appellants run hereinto a dilemma; if the original is defective and invalid, then in law there is no other will but theduly signed carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid andcan be probated, then the objection to the signed duplicate need not be considered, beingsuperfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove that the


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omission of one signature in the third page of the original testament was inadvertent and notintentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publicationdoes not affect the jurisdiction of the probate court, already conferred by the original publicationof the petition for probate. The amended petition did not substantially alter the one first filed, butmerely supplemented it by disclosing the existence of the duplicate, and no showing is madethat new interests were involved (the contents of Exhibit A and A-1 are admittedly identical); andappellants were duly notified of the proposed amendment. It is nowhere proved or claimed thatthe amendment deprived the appellants of any substantial right, and we see no error inadmitting the amended petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs againstappellants.


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G.R. No. 122880 April 12, 2006

FELIX AZUELA,Petitioner,vs.COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G.CASTILLO,Respondents.D E C I S I O N

TINGA,J.:The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legalrecognition to the due execution of this document, the Court is provided the opportunity toassert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of

Articles 805 and 806 of the Civil Code.

A will whose attestation clause does not contain the number of pages on which the will is writtenis fatally defective. A will whose attestation clause is not signed by the instrumental witnesses isfatally defective. And perhaps most importantly, a will which does not contain anacknowledgment, but a merejurat, is fatally defective. Any one of these defects is sufficient todeny probate. A notarial will with all three defects is just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a comprehensive catalogof imperatives for the proper execution of a notarial will. Full and faithful compliance with all thedetailed requisites under Article 805 of the Code leave little room for doubt as to the validity inthe due execution of the notarial will. Article 806 likewise imposes another safeguard to thevalidity of notarial wills that they be acknowledged before a notary public by the testator and

the witnesses. A notarial will executed with indifference to these two codal provisions opensitself to nagging questions as to its legitimacy.

The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court(RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate thenotarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son ofthe cousin of the decedent.

The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:

HULING HABILIN NI EUGENIA E. IGSOLO

SA NGALAN NG MAYKAPAL, AMEN:

AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat angnaunang ginawang habilin o testamento:


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Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sakaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) nghabiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya atkaibigan;

Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa akingpamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon,yaong mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan saPechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay nanakatirik sa inoopahan kong lote, numero 43, Block 24 na pag-aari ng PechatenCorporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupana nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at angpagkakaloob kong ito ay walang pasubalit at kondiciones;

Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling

habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.

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

(Sgd.)EUGENIA E. IGSOLO(Tagapagmana)

PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na

ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin,ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ngkasulatang nabanggit at sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat

at bawat sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing

tagapagmana at sa harap ng lahat at bawat isa sa am in, sa ilalim ng nasabingkasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

EUGENIA E. IGSOLOaddress: 500 San Diego St.Sampaloc, Manila Res. Cert. No. A-7717-37

Issued at Manila on March 10, 1981.

QUIRINO AGRAVAaddress: 1228-Int. 3, KahilumPandacan, Manila Res. Cert. No. A-458365Issued at Manila on Jan. 21, 1981


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LAMBERTO C. LEAOaddress: Avenue 2, Blcok 7,Lot 61, San Gabriel, G.MA., Cavite Res.Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981

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

Nilagdaan ko at ninotario ko ngayong10ng Hunyo 10, 1981 dito sa Lungsod ngMaynila.

(Sgd.)PETRONIO Y. BAUTISTA

Doc. No.1232; NOTARIO PUBLIKOPage No.86; Until Dec. 31, 1981Book No.43; PTR-152041-1/2/81-ManilaSeries of 1981 TAN # 1437-977-81

The three named witnesses to the will affixed their signatures on the left-hand margin of bothpages of the will, but not at the bottom of the attestation clause.

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

The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herselfas the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2Geralda Castillo claimed thatthe will is a forgery, and that the true purpose of its emergence was so it could be utilized as adefense in several court cases filed by oppositor against petitioner, particularly for forcible entryand usurpation of real property, all centering on petitioners right to occupy the properties of the

decedent.3It also asserted that contrary to the representations of petitioner, the decedent wasactually survived by 12 legitimate heirs, namely her grandchildren, who were then residingabroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio

Igsolo, who died in 1965,

4

and the mother of a legitimate child, Asuncion E. Igsolo, whopredeceased her mother by three (3) months.5

Oppositor Geralda Castillo also argued that the will was not executed and attested to inaccordance with law. She pointed out that decedents signature did not appear on the secondpage of the will, and the will was not properly acknowledged. These twin arguments are amongthe central matters to this petition.
http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt1http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt1http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt3http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt3http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt3http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt4http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt4http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt5http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt5http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt5http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt5http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt4http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt3http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt2http://www.lawphil.net/judjuris/juri2006/apr2006/gr_122880_2006.html#fnt1


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After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6TheRTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino

Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the moderntendency in respect to the formalities in the execution of a will x x x with the end in view of givingthe testator more freedom in expressing his last wishes;"7and from this perspective, rebutted

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