1

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 document and its duplicate, marked as Exhibits "A" and "A-1",
as the true last will and testament of Josefa Villacorte, deceased, and
appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission 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 to be 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 on November 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 appointing the Philippine
Trust Company as special administrator.1wph 1. t
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting 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; but on 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, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly
found only on or about May 26, 1959. On June 17, 1959, oppositors
Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but
by order of July 20, 1959, the court admitted said petition, and on July 30,
1959, oppositor Natividad Icasiano filed her amended opposition.
Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its
duplicate to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground that the
same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on June 2,
1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro
Guevara 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 date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will
was actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and testament,
together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the
execution of the decedent's last will and testament, attorneys Torres and
Natividad were in the Philippines at the time of the hearing, and both
testified as to the due execution and authenticity of the said will. So did the
Notary Public before whom the will was acknowledged by the testatrix and
attesting witnesses, and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon cross examination that
he prepared one original and two copies of Josefa Villacorte last will and
testament at his house in Baliuag, Bulacan, but he brought only one original
and one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose
V. Natividad, on page three (3) thereof; but the duplicate copy attached to
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the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting 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 page thereof by the testatrix herself and
attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing
signature of attorney Natividad on page three (3) of the original); that pages
of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts 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
attestation clause is in a language also known to and spoken by the
witnesses; that the will was executed on one single occasion in duplicate
copies; and that both the original and the duplicate copies were 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 that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his
presence.
Oppositors-appellants in turn introduced expert testimony to the effect that
the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine
nor were they written or affixed on the same occasion as the original, and
further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will and testament the
wishes of those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the execution
of the will and the provisions and dispositions thereof, whereby proponents-
appellees stand to profit from properties held by them as attorneys-in-fact of
the deceased and not enumerated or mentioned therein, while oppositors-
appellants are enjoined not to look for other properties not mentioned in the
will, and not to oppose the probate of it, on penalty of forfeiting their share in
the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A-
1", respectively) of the will spontaneously, on the same in the presence of
the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its
duplicate were executed in Tagalog, a language known to and spoken by
both the testator 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 and spoken by the testatrix
and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan,
that the signatures of the testatrix appearing in the duplicate original were
not written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted by
expert Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides those affixed to
the original of the testament (Exh. A); and we feel that with so few standards
the expert's opinion and the signatures in the duplicate could not be those of
the testatrix becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of her signatures, and
the effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the
standard and challenged writings were affixed 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 of
the 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 are more favored than others is proof of neither (see In
re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal,
45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The
testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will, under
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penalty of forfeiture of their shares in the free part do not suffice to prove
fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in
a sizeable portion of the estate being diverted into the hands of non-heirs
and speculators. Whether these clauses are valid or not is a matter to be
litigated on another occassion. It is also well to note that, as remarked by the
Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue
influence are mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite evidence against
the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to
affix his signature to 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 is assured 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 the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it
or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has
held that a testament, with the only page signed at its foot by testator and
witnesses, but not in the left margin, could nevertheless be probated
(Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for
the correlative lettering of the pages of a will, the failure to 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 require
satisfaction of the legal requirements in order to guard against fraud and bid
faith but without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is in existence
and available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here into a dilemma; if
the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to the signed
duplicate need not be considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The
amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing
is made that new interests were involved (the contents of Exhibit A and A-1
are admittedly identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment deprived
the appellants of any substantial right, and we see no error in admitting the
amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed,
with costs against appellants.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes,
Regala and Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.



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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL
OF DOROTEA PEREZ, (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 of Southern 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 the motion for appointment of
a special administrator.
In the petition for probate filed with the respondent court, the petitioner
attached the alleged 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 entire testamentary dispositions and is signed at the
end or bottom of the page by the testatrix alone and at the left hand margin
by the three (3) instrumental witnesses. The second page 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 hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch clerk of
court to receive the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness 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 its execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the
summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex partepraying for a thirty-day period within
which to deliberate on any 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 their addresses 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 could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal.
The said motions or incidents were still pending resolution when respondent
Judge Avelino S. Rosal assumed the position of presiding judge of the
respondent 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 the manifestation and/or motion filed ex parte. In the same order of
denial, the motion for the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the order requiring
him to submit the names of' the intestate heirs and 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 that the testatrix and all the three instrumental and attesting
witnesses sign at the end of the will and in the presence of the testatrix and
of one another?
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Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by
his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the lacier
witnesses and signed the will and the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted provision of law to
require that, for a notarial 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 or at the end, in the presence of the testatrix and of
one another because the attesting witnesses to a will attest not merely the
will itself but also the signature of the testator. It is not sufficient compliance
to sign the page, where the end of the will is found, at the left hand margin of
that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for
the extrinsic validity of the wig that the signatures of the subscribing
witnesses should be specifically located at 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 or particular
location where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent with good
faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the testator's
name written by another person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that
those things are, done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for
the purpose of Identification of such paper as the will which was executed by
the testator. (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 of Identification.
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.
While perfection in the drafting of a will may be desirable, unsubstantial
departure from the usual forms should be ignored, especially where the
authenticity of the will is not assailed. (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 liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of
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fraud and the exercise of undue and improper pressure and influence upon
the testator. This objective is in accord with the modern tendency in respect
to the formalities 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 not for the defect in the place of signatures of the witnesses, he
would have found the testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in
the present case when the instrumental witnesses signed at the left margin
of the sole page which contains all the testamentary dispositions, especially
so when the will was properly Identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. 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 to state the number of pages used in writing the will. This
would have been a fatal defect were 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 her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations 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 or
sheets upon which the win is written, which requirement has
been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada,
42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or
pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating 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. While the attestation clause does
not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will
contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of
similar cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being
defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... Impossibility of substitution of this page is assured not
only (sic) 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 the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she
had no control where the purpose of the law to guarantee
the Identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the fun
observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) 'witnesses may sabotage the
will by muddling or bungling it or the attestation clause.
WHEREFORE, the present petition is hereby granted. The orders of the
respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court is ordered to allow
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the probate of the wig and to conduct further proceedings in accordance
with this decision. No pronouncement on costs.
SO ORDERED.
Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ.,
concur.
Teehankee, J, is on leave.








































8

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 legal recognition to the due execution of
this document, the Court is provided the opportunity to assert 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 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.
There is a distinct and consequential reason the Civil Code provides a
comprehensive catalog of imperatives for the proper execution of a notarial
will. Full and faithful compliance with all the detailed requisites under Article
805 of the Code leave little room for doubt as to the validity in the due
execution of the notarial will. Article 806 likewise imposes another safeguard
to the validity 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 opens itself 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 the notarial will of Eugenia E. Igsolo,
which was notarized on 10 June 1981. Petitioner is the son of the cousin of
the decedent.
The will, consisting of two (2) pages and written in the 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 ang naunang ginawang habilin o
testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma
sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-
pag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang silbing
ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa
aking pamangkin 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 sa Pechaten Korporasyon, ganoon din ibinibigay
ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote,
numero 43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob
kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob 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
9

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 ng kasulatang 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 amin, sa ilalim ng nasabing kasulatan at sa kaliwang
panig ng lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa
Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-8
1

The three named witnesses to the will affixed their signatures on the left-
hand margin of both pages of the will, but not at 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 the designated executor,
Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the
decedent.
2
Geralda Castillo claimed that the will is a forgery, and that the
true purpose of its emergence was so it could be utilized as a defense in
several court cases filed by oppositor against petitioner, particularly for
forcible entry and usurpation of real property, all centering on petitioners
right to occupy the properties of the decedent.
3
It also asserted that contrary
to the representations of petitioner, the decedent was actually survived by
12 legitimate heirs, namely her grandchildren, who were then residing
abroad. 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, who predeceased her mother by three (3)
months.
5

Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents
signature did not appear on the second page of the will, and the will was not
properly acknowledged. These twin arguments are among the central
matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10
August 1992.
6
The RTC 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 modern tendency in respect to the
formalities in the execution of a will x x x with the end in view of giving the
testator more freedom in expressing his last wishes;"
7
and from this
perspective, rebutted oppositors arguments that the will was not properly
executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of
the subscribing and attesting witnesses, and having in mind the modern
10

tendency in respect to the formalities in the execution of a will, i.e., the
liberalization of the interpretation of the law on the formal requirements of a
will with the end in view of giving the testator more freedom in expressing
his last wishes, this Court is persuaded to rule that the will in question is
authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the
end of the will after the signature of the testatrix, the following statement is
made under the sub-title, "Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito,
na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay nilagdaan ng nasabing
tagapagmana sa ilalim ng kasulatang 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 amin, sa ilalim ng nasabing kasulatan at sa kaliwang
panig ng lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the
acknowledgement and is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositors contention that the attestation clause was not signed by
the subscribing witnesses at the bottom thereof, this Court is of the view 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 satisfies the purpose of
identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the
attestation did not state the number of pages thereof, it is worthy to note that
the will is composed of only two pages. The first page contains the entire
text of the testamentary dispositions, and the second page contains the last
portion of the attestation clause and acknowledgement. Such being so, the
defects are not of a serious nature as to invalidate the will. For the same
reason, the failure of the testatrix to affix her signature on the left margin of
the second page, which contains only the last portion of the attestation
clause and acknowledgment is not a fatal defect.
As regards the oppositors assertion that the signature of the testatrix on the
will is a forgery, the testimonies of the three subscribing witnesses to the will
are convincing enough to establish the genuineness of the signature of the
testatrix and the due execution of the will.
8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who
had substituted his since deceased mother-in-law, Geralda Castillo. In a
Decision dated 17 August 1995, the Court of Appeals reversed the trial court
and ordered the dismissal of the petition for probate.
9
The Court of Appeals
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.
10

Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code
that "the number of 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."
11

The solution to this case calls for the application of Articles 805 and 806 of
the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of the testator
and of one another.
11

If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of
the attestation clause to state the number of pages of the will. But an
examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the
number of pages of the will.
12
There was an incomplete attempt to comply
with this requisite, a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in;
hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court,
citing in the process Uy Coque v. Navas L. Sioca
13
and In re: Will of
Andrada.
14
In Uy Coque, the Court noted that among the defects of the will
in question was the failure of the attestation clause to state the number of
pages contained in the will.
15
In ruling that the will could not be admitted to
probate, the Court made the following consideration which remains highly
relevant to this day: "The purpose of requiring the number of sheets to be
stated in the attestation clause is obvious; the document might easily be
so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement
of the total number of sheets such removal might be effected by taking
out the sheet and changing the numbers at the top of the following
sheets or pages. If, on the other hand, the total number of sheets is stated
in the attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty."
16

The case of In re Will of Andrada concerned a will the attestation clause of
which failed to state the number of sheets or pages used. This consideration
alone was sufficient for the Court to declare "unanim[ity] upon the point that
the defect pointed out in the attesting clause is fatal."
17
It was further
observed that "it cannot be denied that the x x x requirement affords
additional security against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this requirement, it must be
considered material."
18

Against these cited cases, petitioner cites Singson v.
Florentino
19
and Taboada v. Hon. Rosal,
20
wherein the Court allowed
probate to the wills concerned therein despite the fact that the attestation
clause did not state the number of pages of the will. Yet the appellate court
itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that
the attestation does not state the number of pages used upon which the will
is written. Hence, the Will is void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel
Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio
[Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195," to the effect
that a will may still be valid even if the attestation does not contain the
number of pages used upon which the Will is written. However, the
Decisions of the Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of "Manuel Singson versus
Emilia Florentino, et al., supra," although the attestation in the subject Will
did not state the number of pages used in the will, however, the same was
found in the last part of the body of the Will:
"x x x
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 or sheets upon which the will is written, which
requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L.
Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of
these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if
this is missing or is omitted, it will have the effect of invalidating the will if the
deficiency cannot be supplied, not by evidence aliunde, but by a
12

consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the body of the
will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator
from being defeated by purely technical considerations." (page 165-165,
supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
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 really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201,
supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not
stated in any part of the Will. The will does not even contain any notarial
acknowledgment wherein the number of pages of the will should be stated.
21

Both Uy Coque and Andrada were decided prior to the enactment of the
Civil Code in 1950, at a time when the statutory provision governing the
formal requirement of wills was Section
618 of the Code of Civil Procedure.
22
Reliance on these cases remains
apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618.
23
However, the
enactment of the Civil Code in 1950 did 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 these two
cases. Article 809 of the Civil Code states: "In the absence of bad faith,
forgery, or fraud, or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the requirements of article
805."
In the same vein, petitioner cites the report of the Civil Code Commission,
which stated that "the underlying and fundamental objective permeating the
provisions on the [law] on [wills] in this project consists in the [liberalization]
of the manner of their execution with the end in view of giving the testator
more [freedom] in [expressing] his last wishes. This objective is in accord
with the [modern tendency] in respect to the formalities in the execution of
wills."
24
However, petitioner conveniently omits the qualification offered by
the Code Commission in the very same paragraph he cites from their report,
that such liberalization be "but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator."
25

Caneda v. Court of Appeals
26
features an extensive discussion made by Justice
Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
clause in wills.
27
Uy Coque and Andrada are cited therein, along with several other
cases, as examples of the application of the rule of strict construction.
28
However,
the Code Commission opted to recommend a more liberal construction through the
"substantial compliance rule" under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every
page; whether the subscribing witnesses are three or the will was notarized.
All these are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.
29
(Emphasis supplied.)
13

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its
assailed decision, considering that the failure to state the number of pages
of the will in the attestation clause is one of the defects which cannot be
simply disregarded. In Caneda itself, the Court refused to allow the probate
of a will whose attestation clause failed to state that the witnesses
subscribed their respective signatures to the will in the presence of the
testator and of each other,
30
the other omission cited by Justice J.B.L. Reyes
which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as 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."
31
Thus, a failure by the attestation clause to
state that the testator signed every page can be liberally construed, since
that fact can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the attestation is the only
textual guarantee of compliance.
32

The failure of the attestation clause to state the number of pages on which
the will was written remains a fatal flaw, despite Article 809. The purpose of
the law in requiring the clause to state the number of pages on which the will
is written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the
pages.
33
The failure to state the number of pages equates with the absence
of an averment on the part of the instrumental witnesses as to how many
pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. 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 andTaboada.
However, in this case, there could have been no substantial compliance with
the requirements under Article 805 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.
At the same time, Article 809 should not deviate from the need to comply
with the formal requirements as enumerated under Article 805. Whatever
the inclinations of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe substantially the
same formal requisites as enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained effective safeguards against the
forgery or intercalation of notarial wills.
34
Compliance with these
requirements, however picayune in impression, affords the public a high
degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will.
35
The
transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission of wills to
probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects
that should necessarily lead to its rejection.
For one, the attestation clause was not signed 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 which after all consists of their averments before the
notary public.
Cagro v. Cagro
36
is material on this point. As in this case, "the signatures of
the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses
on the left-hand margin."
37
While three (3) Justices
38
considered the
signature requirement had been substantially complied with, a majority of six
(6), speaking through Chief Justice Paras, ruled that the attestation clause
had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do
not appear at the bottom of the attestation clause, although the page
containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The
attestation clause is "a memorandum of the facts attending the execution of
the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned attestation clause cannot be
considered as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.
14

The petitioner and appellee contends that signatures of the three witnesses
on the left-hand margin conform substantially to the law and may be
deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the
will be signed on the left-hand margin of all its pages. If an attestation clause
not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.
39

The Court today reiterates the continued efficacy of Cagro. Article 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 [the instrumental witnesses]." The respective intents behind
these two classes of signature are distinct from each other. 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. Indeed, the attestation clause is separate and apart from the
disposition of the will. 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 Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses signatures on each and every page, the fact must be noted that it
is the attestation clause which contains the utterances reduced into writing
of the testamentary witnesses themselves. It is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages
used upon which the will is written; the fact that the testator had signed the
will and every page thereof; and that they witnessed and signed the will and
all the pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental facts
would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to
by the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this
petition should also hinge. The requirement under Article 806 that "every will
must be acknowledged before a notary public by the testator and the
witnesses" has also not been complied with. The importance of this
requirement is highlighted by the fact that it had been segregated from the
other requirements under Article 805 and entrusted into a separate
provision, Article 806. The non-observance of Article 806 in this case is
equally as critical as the other cited flaws in compliance with Article 805, and
should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
"Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa
Lungsod ng Maynila."
40
By no manner of contemplation can those 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.
41
It involves an extra step undertaken
whereby the signor actually declares to the notary that the executor of a
document has attested to the notary that the same is his/her own free act
and deed.
It might be possible to construe the averment as a jurat, even though it does
not hew 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.
42
Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself "signed and
notarized" the document. Possibly though, the word "ninotario" or
"notarized" encompasses the signing of and swearing in of the executors of
the document, which in this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the
will would nonetheless remain invalid, as the express requirement of Article
806 is that the will be "acknowledged", and not merely subscribed and
sworn to. The will does not present any textual proof, much less one under
oath, that the decedent and the instrumental witnesses executed or signed
the will as their own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against spurious wills or
those made beyond the free consent of the testator. An acknowledgement is
not an empty meaningless act.
43
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.
15

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.
It may not have been said before, but we can assert the rule, self-evident as
it is under Article 806. A notarial will that is 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.
There are two other requirements under Article 805 which were not fully
satisfied by the will in question. We need not discuss them at length, as they
are no longer material to the
disposition of this case. The provision requires that the testator and the
instrumental witnesses sign each and every page of the will on the left
margin, except the last; and that all the pages shall be numbered
correlatively in letters placed on the upper part of each page. In this case,
the decedent, unlike the witnesses, failed to sign both pages of the will on
the left margin, her only signature appearing at the so-called "logical
end"
44
of the will on its first page. Also, the will itself is not numbered
correlatively in letters on each page, but instead numbered with Arabic
numerals. There is a line of thought that has disabused the notion that these
two requirements be construed as mandatory.
45
Taken in isolation, these
omissions, by themselves, may not be sufficient to deny probate to a will.
Yet even as these omissions are not decisive to the adjudication of this
case, they need not be dwelt on, though indicative as they may be of a
general lack of due regard for the requirements under Article 805 by
whoever executed the will.
All told, the string of mortal defects which the will in question suffers from
makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
























16

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.
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 certiorari is the issue of whether or not the attestation clause contained in
the last will and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower
without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three
attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and
Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will.
1
It was declared therein, among other things, that
the testator was leaving by way of legacies and devises his real and personal
properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear
to be related to the testator.
2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a
petition docketed as Special Proceeding No. 3899-R before Branch II of the
then Court of First Instance of Cebu seeking the probate of his last will and
testament. The probate court set the petition for hearing on August 20, 1979
but the same and subsequent scheduled hearings were postponed for one
reason to another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court.
3
On February 25, 1981,
Benoni Cabrera, on of the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order of March
6, 1981.
4

Thereafter, herein petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-
R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition 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 of the
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 as Branch XV of the Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20,
1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of
the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of
Cebu where it remained until the conclusion of the probate proceedings.
6

In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of the
testator's will on the ground that on the alleged date of its execution, the
testator was already in the poor state of health such that he could not have
possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein.
7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the
notary public Atty. Filoteo Manigos, testified that the testator executed the
will in question in their presence while he was of sound and disposing mind
and that, contrary to the assertions of the oppositors, Mateo Caballero was
in good health and was not unduly influenced in any way in the execution of
his will. Labuca also testified that he and the other witnesses attested and
signed the will in the presence of the testator and of each other. The other
17

two attesting witnesses were not presented in the probate hearing as the
had died by then.
8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
. . . The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty.
Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed the Last Will
and Testament now marked Exhibit "C" on December 5,
1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he
caused the filing of the original petition now marked Exhibit
"D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that
he would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the
examination of this signature of Mateo Caballero in Exhibit
"C", nothing came out of it because they abandoned the idea
and instead presented Aurea Caballero and Helen Caballero
Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the
Last Will and Testament of Mateo Caballero and that it was
executed in accordance with all the requisites of the law.
9

Undaunted by the said judgment of the probate court, petitioners elevated
the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its
attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in
their presence and that they also signed the will and all the pages thereof in
the presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision
10
affirming
that of the trial court, and ruling that the attestation clause in the last will of
Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in
question may be considered as having 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 "we do certify that the testament was read
by him and the attestator, Mateo Caballero, has published
unto us the foregoing will consisting of THREE PAGES,
including the acknowledgment, each page numbered
correlatively in letters of the upper part of each page, as his
Last Will and Testament, and he has signed the same and
every page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said
testator and in the presence of each and all of us (emphasis
supplied).
To our thinking, this is sufficient compliance and no evidence
need be presented to indicate the meaning that the said will
was signed by the testator and by them (the witnesses) in
the presence of all of them and of one another. Or as the
language of the law would have it that the testator signed the
will "in the presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another." If
not completely or ideally perfect in accordance with the
wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law."
11

Petitioners moved for the reconsideration of the said ruling of respondent
court, but the same was denied in the latter's resolution of January 14,
1992,
12
hence this appeal now before us. Petitioners assert that respondent
court has ruled upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning once more, on the
same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter,
after some prefatory observations which we feel should be made in aid of
the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is
permitted, with the formalities prescribed by law, to control to a certain
degree the disposition of his estate after his death.
13
Under the Civil Code,
18

there are two kinds of wills which a testator may execute.
14
the first kind is the
ordinary or attested will, the execution of which is governed by Articles 804 to
809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation 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 the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the
witness, it shall be interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by
a testator and the attesting witness.
15
hence it is likewise known as notarial
will. Where the attestator is deaf or deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two
persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged.
16

The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the testator himself. This kind of
will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the
testator.
17

However, in the case of an ordinary or attested will, its attestation clause
need not be written in a language or dialect known to the testator since it
does not form part of the testamentary disposition. Furthermore, the
language used in the attestation clause likewise need not even be known to
the attesting witnesses.
18
The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed before
them and to the manner of the execution the same.
19
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.
20
It is made
for the purpose of preserving in a permanent form a record of the facts that
attended the execution of a particular will, so that 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
which would result in the invalidity of the will,
22
should state (1) the number of
the pages used upon which the will is written; (2) that the testator signed, or
expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that theattesting witnesses
witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages
on which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or
decrease in the pages;
23
whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of authentication
and identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses.
24

Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation
clause.
25
The attestation clause, therefore, provide strong legal guaranties for
19

the due execution of a will and to insure the authenticity thereof.
26
As it
appertains only to the witnesses and not to the testator, it need be signed only
by them.
27
Where it is left unsigned, it would result in the invalidation of the will
as it would be possible and easy to add the clause on a subsequent occasion in
the absence of the testator and its witnesses.
28

In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the
following manner:
The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his
last wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with
respect to the formalities in the execution of wills. . . .
29

2. An examination of the last will and testament of Mateo Caballero shows
that it is comprised of three sheets all of which have been numbered
correlatively, with the left margin of each page thereof bearing the respective
signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-
Visayan dialect and is signed at the foot thereof by the testator. The
attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting
witnesses hereto.
30
Since it is the proverbial bone of contention, we reproduce
it again for facility of reference:
We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the Opposite of
our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the
letters on the upper part of each page, as his Last Will and
Testament and he has the same and every page thereof, on
the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the
presence of each and all of us.
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 the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as
such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on
the same paper the names of the witnesses, for the sole purpose of
identification.
31

In Taboada vs. Rizal,
32
we clarified that attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed
in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to specifically state the fact
that the attesting witnesses the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every
page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause
herein assailed is the fact that while it recites that the testator indeed signed
the will and all its pages in the presence of the three attesting witnesses and
states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed
their respective signatures to the will in the presence of the testator and of
each other.
The phrase "and he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin," obviously
20

refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words "as his Last Will and Testament." On the other hand,
although the words "in the presence of the testator and in the presence of
each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin." What is then clearly lacking, in the final logical analysis , is the
statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another.
It is our considered view that the absence of that statement required by law
is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the
pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is
not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article
805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the
end thereof and at the left margin of each page by the three attesting
witnesses, it certainly cannot be conclusively inferred therefrom that the said
witness affixed their respective signatures in the presence of the testator
and of each other since, as petitioners correctly observed, the presence of
said signatures only establishes the fact that it was indeed signed, but it
does not prove that the attesting witnesses did subscribe to the will in the
presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on
various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.
33

We believe that the further comment of former Justice J.B.L.
Reyes
34
regarding Article 809, wherein he urged caution in the application of
the substantial compliance rule therein, is correct and should be applied in the
case under consideration, as well as to future cases with similar questions:
. . . The rule must be limited to disregarding those defects
that can be supplied by an examination of the will itself:
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All
theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury in
the probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the attestation or the
language employed therein. Such defects or imperfections would not render
a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner
of proving the due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and every
page of the will in the presence of the testator and of each other.
35
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 we
can 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.
Furthermore, the rule on substantial compliance in Article 809 cannot be
revoked or relied on by respondents since it presupposes that the defects in
21

the attestation clause can be cured or supplied by the text of the will or a
consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In other
words, defects must be remedied by intrinsic evidence supplied by the will
itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic
evidence thereof, since an overall appreciation of the contents of the will
yields no basis whatsoever from with such facts may be plausibly deduced.
What private respondent insists on are the testimonies of his witnesses
alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to
extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed
in resolving issues centering on compliance with the legal formalities
required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil
Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No. 190 and the
amendment thereto were practically reproduced and adopted in the Civil
Code.
One view advance the liberal or substantial compliance rule. This was first
laid down in the case of Abangan vs. Abangan,
36
where it was held that the
object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it
was also emphasized that one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will,
hence when an interpretation already given assures such ends, any other
interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded. The subsequent cases of Avera vs. Garcia,
37
Aldaba vs.
Roque,
38
Unson vs. Abella,
39
Pecson vs. Coronel,
40
Fernandez vs. Vergel de
Dios, et al.,
41
and Nayve vs. Mojal, et al.
42
all adhered to this position.
The other view which advocated the rule that statutes which prescribe the
formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases
of In the Matter of the Estate of Saguinsin,
43
In re Will of Andrada,
44
Uy
Coque vs. Sioca,
45
In re Estate of Neumark,
46
and Sano vs. Quintana.
47

Gumban vs. Gorecho, et al.,
48
provided the Court with the occasion to clarify
the seemingly conflicting decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that the witnesses signed
the will and each and every page thereof on the left margin in the presence of
the testator. The will in question was disallowed, with these reasons therefor:
In support of their argument on the assignment of error
above-mentioned, appellants rely on a series of cases of this
court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca
[1922], 43 Phil., 405), and In re Estate of Neumark ([1923],
46 Phil., 841), and ending with Sano vs. Quintana([1925], 48
Phil., 506). Appellee counters with the citation of a series of
cases beginning withAbangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
922), and culminating in Nayve vs. Mojal and Aguilar ([1924],
47 Phil., 152). In its last analysis, our task is to contrast and,
if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs.
Quintana,supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that
an attestation clause which does not recite that the
witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator is defective,
and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it
was held that the attestation clause must estate the fact that
the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held
that the fact that the testator and the witnesses signed each
22

and every page of the will can be proved also by the mere
examination of the signatures appearing on the document
itself, and the omission to state such evident facts does not
invalidate the will.
It is a habit of courts to reaffirm or distinguish previous
cases; seldom do they admit inconsistency in doctrine. Yet
here, unless aided impossible to reconcile the Mojal and
Quintana decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other, we
reverse.
In resolving this puzzling question of authority, three
outstanding points may be mentioned. In the first place, the
Mojal, decision was concurred in by only four members of
the court, less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal
dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana
decision was promulgated in December, 1925; the Quintana
decision was thus subsequent in point of time. And in the
third place, the Quintana decision is believed more nearly to
conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely
by statute. The law of the case is here found in section 61 of
the Code of Civil Procedure as amended by Act No. 2645,
and in section 634 of the same Code, as unamended. It is in
part provided in section 61, as amended that "No will . .
. shall be valid . . . unless . . .." It is further provided in the
same section that "The attestation shall state the number of
sheets or pages used, upon which the will is written, and the
fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof
in the presence of the testator and of each other." Codal
section 634 provides that "The will shall be disallowed in
either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to
disregard the legislative purpose so emphatically and clearly
expressed.
We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of
the Court that once more appeared to revive the seeming diversity of views
that was earlier threshed out therein. The cases of Quinto vs.
Morata,
49
Rodriguez vs. Alcala,
50
Enchevarria vs. Sarmiento,
51
and Testate
Estate of Toray
52
went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al.,
53
Rey vs. Cartagena,
54
De Ticson vs. De
Gorostiza,
55
Sebastian vs. Panganiban,
56
Rodriguez vs. Yap,
57
Grey vs.
Fabia,
58
Leynez vs. Leynez,
59
Martir vs. Martir,
60
Alcala vs. De Villa,
61
Sabado
vs.
Fernandez,
62
Mendoza vs. Pilapil,
63
and Lopez vs. Liboro,
64
veered away from
the strict interpretation rule and established a trend toward an application of the
liberal view.
The Code Commission, cognizant of such a conflicting welter of views and
of the undeniable inclination towards a liberal construction, recommended
the codification of the substantial compliance rule, as it believed this rule to
be in accord with the modern tendency to give a liberal approach to the
interpretation of wills. Said rule thus became what is now Article 809 of the
Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a
will, and that is, in accordance with the formalities prescribed
by Section 618 of the Code of Civil Procedure as amended
by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section
618 of the Code of Civil Procedure, as amended regarding
the contents of the attestation clause were mandatory, and
non-compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily restrained
the freedom of the testator in disposing of his property.
23

However, in recent years the Supreme Court changed its
attitude and has become more liberal in the interpretation of
the formalities in the execution of wills. This liberal view is
enunciated in the cases ofRodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June
21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
1941.
In the above mentioned decisions of our Supreme Court, it
has practically gone back to the original provisions of
Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the main
objective of the proposed Code in the liberalization of the
manner of executing wills, article 829 of the Project is
recommended, which reads:
"Art. 829. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects and
imperfections in the form of attestation or in
the language used therein shall not render
the will invalid if it is proved that the will was
in fact executed and attested in substantial
compliance with all the requirements of
article 829."
65

The so-called liberal rule, the Court said in Gil vs. Murciano,
66
"does not offer
any puzzle or difficulty, nor does it open the door to serious consequences. The
later decisions do tell us when and where to stop; they draw the dividing line
with precision. They do not allow evidence aliunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They
only permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of
law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions 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.
67

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












24

G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J .:
Petition to review on certiorari the judgment of the Court First Instance of
Cebu allowing the probate of the last will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
decease opposed the allowance of the will (Exhibit "E"), alleging the will was
executed through fraud, deceit, misrepresentation and undue influence; that
the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the
probate of the said last will and testament Hence this appeal by certiorari
which was given due course.
The only question presented for determination, on which the decision of the
case hinges, is whether the supposed last will and testament of Valente Z.
Cruz (Exhibit "E") was executed in accordance with law, particularly Articles
805 and 806 of the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T.
Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same time the Notary Public before whom
the will was supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that
the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before
the notary public to acknowledge the will. On the other hand, private
respondent-appellee, Manuel B. Lugay, who is the supposed executor of the
will, following the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them, bolstering
up his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will
as against the purely technical reason that one of the
witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather
than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are
inclined to sustain that of the appellant that the last will and testament in
question was not executed in accordance with law. The notary public before
whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having
signed the will. To acknowledge before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as
genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p.
245.) Consequently, if the third witness were the notary public himself, he
would have to avow assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his personality into
two so that one will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangement Balinon v. De Leon, 50 0. G.
583.) That function would defeated if the notary public were one of the
attesting instrumental witnesses. For them he would be interested sustaining
the validity of the will as it directly involves him and the validity of his own
act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p.
106-107), would be thwarted.
25

Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43
Ill. 130). There are others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E.
2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W.
Merill v. Boal, 132 A. 721;See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in this jurisdiction
or are not decisive of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. He
the notary public acted not only as attesting witness but also acknowledging
witness, a situation not envisaged by Article 805 of the Civil Code which
reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will or file
another with the office of the Clerk of Court. [Emphasis
supplied]
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses to act as such and of
Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before
the notary public for or that purpose. In the circumstances, the law would not
be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.






















26

LETICIA VALMONTE ORTEGA, G.R. No. 157451
Petitioner,
Presen
t:

Pan
ganiban, J.,

Chairman,
- versus
- Sandoval-Gutierrez,
Cor
ona,
Carpio
Morales,
and Gar
cia, JJ

JOSEFINA C.
VALMONTE, Promulgated:
Respondent.
Dece
mber 16, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
-- -- -- -- x


DECISION


PANGANIBAN, J.:


he law favors the probate of a will. Upon those
who oppose it rests the burden of showing why
it should not be allowed. In the present case,
petitioner has failed to discharge this burden
satisfactorily. For this reason, the Court cannot attribute
any reversible error on the part of the appellate tribunal
that allowed the probate of the will.
T
27

The Case

Before the Court is a Petition for Review
[1]
under
Rule 45 of the Rules of Court, seeking to reverse and set
aside the December 12, 2002 Decision
[2]
and the March 7,
2003 Resolution
[3]
of the Court of Appeals (CA) in CA-
GR CV No. 44296. The assailed Decision disposed as
follows:

WHEREFORE, the appeal is GRANTED,
and the Decision appealed from
is REVERSED and SET ASIDE. In its place
judgment is rendered approving and allowing
probate to the said last will and testament of
Placido Valmonte and ordering the issuance of
letters testamentary to the petitioner Josefina
Valmonte. Let this case be remanded to the
court a quo for further and concomitant
proceedings.
[4]




The assailed Resolution denied petitioners Motion
for Reconsideration.

The Facts

The facts were summarized in the assailed Decision
of the CA, as follows:

x x x: Like so many others before him,
Placido toiled and lived for a long time in the
United States until he finally reached
retirement. In 1980, Placido finally came home to
stay in the Philippines, and he lived in the house
and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with
his sister Ciriaca Valmonte and titled in their
names in TCT 123468. Two years after his arrival
from the United States and at the age of 80 he
wed Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio,
Jr. on February 5, 1982. But in a little more than
two years of wedded bliss, Placido died on
October 8, 1984 of a cause written down as COR
PULMONALE.

Placido executed a notarial last will and
testament written in English and consisting of two
28

(2) pages, and dated June 15, 1983 but
acknowledged only on August 9, 1983. The first
page contains the entire testamentary
dispositions and a part of the attestation clause,
and was signed at the end or bottom of that page
by the testator and on the left hand margin by the
three instrumental witnesses. The second page
contains the continuation of the attestation clause
and the acknowledgment, and was signed by the
witnesses at the end of the attestation clause and
again on the left hand margin. It provides in the
body that:

LAST WILL AND TESTAMENT
OF PLACIDO VALMONTE IN THE
NAME OF THE LORD AMEN:

I, PLACIDO VALMONTE, of
legal age, married to Josefina Cabansag
Valmonte, and a resident of 9200
Catmon Street, Makati, Metro Manila, 83
years of age and being of sound and
disposing mind and memory, do hereby
declare this to be my last will and
testament:

1. It is my will that I be buried in
the Catholic Cemetery, under the
auspices of the Catholic Church in
accordance with the rites and said
Church and that a suitable monument to
be erected and provided my by executrix
(wife) to perpetuate my memory in the
minds of my family and friends;

2. I give, devise and bequeath
unto my loving wife, JOSEFINA C.
VALMONTE, one half (1/2) portion of
the follow-described properties, which
belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described
on plan Psd-28575, LRC,
(GLRO), situated in Makati,
Metro Manila, described and
covered by TCT No. 123468
of the Register of Deeds of
Pasig, Metro-Manila
registered jointly as co-
owners with my deceased
sister (Ciriaca Valmonte),
having share and share alike;

b. 2-storey building standing on
the above-described
property, made of strong and
mixed materials used as my
residence and my wife and
located at No. 9200 Catmon
Street, Makati, Metro Manila
also covered by Tax
Declaration No. A-025-00482,
Makati, Metro-Manila, jointly
in the name of my deceased
sister, Ciriaca Valmonte and
myself as co-owners, share
and share alike or equal co-
owners thereof;

3. All the rest, residue and
remainder of my real and personal
properties, including my savings
29

account bank book in USA which is in
the possession of my nephew, and all
others whatsoever and wherever found,
I give, devise and bequeath to my said
wife, Josefina C. Valmonte;

4. I hereby appoint my wife,
Josefina C. Valmonte as sole executrix
of my last will and testament, and it is my
will that said executrix be exempt from
filing a bond;

IN WITNESS WHEREOF, I have
hereunto set my hand this 15
th
day of
June 1983 in Quezon City, Philippines.


The allowance to probate of this will was
opposed by Leticia on the grounds that:

1. Petitioner failed to allege all
assets of the testator, especially
those found in the USA;

2. Petitioner failed to state the
names, ages, and residences of the
heirs of the testator; or to give them
proper notice pursuant to law;

3. Will was not executed and attested
as required by law and legal
solemnities and formalities were not
complied with;

4. Testator was mentally incapable to
make a will at the time of the alleged
execution he being in an advance
sate of senility;

5. Will was executed under duress, or
the influence of fear or threats;

6. Will was procured by undue and
improper influence and pressure on
the part of the petitioner and/or her
agents and/or assistants; and/or

7. Signature of testator was procured
by fraud, or trick, and he did not
intend that the instrument should be
his will at the time of affixing his
signature thereto;


and she also opposed the appointment as
Executrix of Josefina alleging her want of
understanding and integrity.

At the hearing, the petitioner Josefina
testified and called as witnesses the notary public
Atty. Floro Sarmiento who prepared and notarized
the will, and the instrumental witnesses spouses
Eugenio Gomez, Jr. and Feliza Gomez and Josie
Collado. For the opposition, the oppositor Leticia
and her daughter Mary Jane Ortega testified.

According to Josefina after her marriage
with the testator they lived in her parents house at
Salingcob, Bacnotan, La Union but they came to
Manila every month to get his $366.00 monthly
pension and stayed at the said Makati
30

residence. There were times though when to
shave off on expenses, the testator would travel
alone. And it was in one of his travels by his
lonesome self when the notarial will was made.
The will was witnessed by the spouses Eugenio
and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said
she had no knowledge of the existence of the last
will and testament of her husband, but just
serendipitously found it in his attache case after
his death. It was only then that she learned that
the testator bequeathed to her his properties and
she was named the executrix in the said will. To
her estimate, the value of property both real and
personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the
testator never suffered mental infirmity because
despite his old age he went alone to the market
which is two to three kilometers from their home
cooked and cleaned the kitchen and sometimes if
she could not accompany him, even traveled to
Manila alone to claim his monthly
pension. Josefina also asserts that her husband
was in good health and that he was hospitalized
only because of a cold but which eventually
resulted in his death.

Notary Public Floro Sarmiento, the notary
public who notarized the testators will, testified
that it was in the first week of June 1983 when the
testator together with the three witnesses of the
will went to his house cum law office and
requested him to prepare his last will and
testament. After the testator instructed him on the
terms and dispositions he wanted on the will, the
notary public told them to come back on June 15,
1983 to give him time to prepare it. After he had
prepared the will the notary public kept it safely
hidden and locked in his drawer. The testator and
his witnesses returned on the appointed date but
the notary public was out of town so they were
instructed by his wife to come back on August 9,
1983, and which they did. Before the testator and
his witnesses signed the prepared will, the notary
public explained to them each and every term
thereof in Ilocano, a dialect which the testator
spoke and understood. He likewise explained that
though it appears that the will was signed by the
testator and his witnesses on June 15, 1983, the
day when it should have been executed had he
not gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he
no longer changed the typewritten date of June
15, 1983 because he did not like the document to
appear dirty. The notary public also testified that
to his observation the testator was physically and
mentally capable at the time he affixed his
signature on the will.

The attesting witnesses to the will
corroborated the testimony of the notary public,
and testified that the testator went alone to the
house of spouses Eugenio and Feliza Gomez at
GSIS Village, Quezon City and requested them to
accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that
after giving his instructions to Atty. Floro
Sarmiento, they were told to return on June 15,
31

1983; that they returned on June 15, 1983 for the
execution of the will but were asked to come back
instead on August 9, 1983 because of the
absence of the notary public; that the testator
executed the will in question in their presence
while he was of sound and disposing mind and
that he was strong and in good health; that the
contents of the will was explained by the notary
public in the Ilocano and Tagalog dialect and that
all of them as witnesses attested and signed the
will in the presence of the testator and of each
other. And that during the execution, the
testators wife, Josefina was not with them.

The oppositor Leticia declared that
Josefina should not inherit alone because aside
from her there are other children from the siblings
of Placido who are just as entitled to inherit from
him. She attacked the mental capacity of the
testator, declaring that at the time of the execution
of the notarial will the testator was already 83
years old and was no longer of sound mind. She
knew whereof she spoke because in 1983 Placido
lived in the Makati residence and asked Leticias
family to live with him and they took care of
him. During that time, the testators physical and
mental condition showed deterioration,
aberrations and senility. This was corroborated
by her daughter Mary Jane Ortega for whom
Placido took a fancy and wanted to marry.

Sifting through the evidence, the court a
quo held that [t]he evidence adduced, reduces the
opposition to two grounds, namely:

1. Non-compliance with the legal
solemnities and formalities in the
execution and attestation of the will; and

2. Mental incapacity of the testator at the
time of the execution of the will as he
was then in an advanced state of senility

It then found these grounds extant and
proven, and accordingly disallowed probate.
[5]





Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted
the will of Placido Valmonte to probate. The CA upheld
the credibility of the notary public and the subscribing
witnesses who had acknowledged the due execution of the
will. Moreover, it held that the testator had testamentary
capacity at the time of the execution of the will. It added
that his sexual exhibitionism and unhygienic, crude and
32

impolite ways
[6]
did not make him a person of unsound
mind.

Hence, this Petition.
[7]



Issues

Petitioner raises the following issues for our
consideration:

I.

Whether or not the findings of the probate court
are entitled to great respect.

II.

Whether or not the signature of Placido Valmonte
in the subject will was procured by fraud or
trickery, and that Placido Valmonte never
intended that the instrument should be his last will
and testament.

III.

Whether or not Placido Valmonte has
testamentary capacity at the time he allegedly
executed the subject will.
[8]




In short, petitioner assails the CAs allowance of the
probate of the will of Placido Valmonte.

33

This Courts Ruling

The Petition has no merit.


Main Issue:
Probate of a Will

At the outset, we stress that only questions of law
may be raised in a Petition for Review under Section 1 of
Rule 45 of the Rules of Court. As an exception, however,
the evidence presented during the trial may be examined
and the factual matters resolved by this Court when, as in
the instant case, the findings of fact of the appellate court
differ from those of the trial court.
[9]


The fact that public policy favors the probate of a
will does not necessarily mean that every will presented
for probate should be allowed. The law lays down the
procedures and requisites that must be satisfied for the
probate of a will.
[10]
Verily, Article 839 of the Civil Code
states the instances when a will may be disallowed, as
follows:
34

Article 839. The will shall be disallowed in
any of the following cases:

(1) If the formalities required by law have
not been complied with;

(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the time of
its execution;

(3) If it was executed through force or
under duress, or the influence of fear, or threats;

(4) If it was procured by undue and
improper pressure and influence, on the part of
the beneficiary or of some other person;

(5) If the signature of the testator was
procured by fraud;

(6) If the testator acted by mistake or did
not intend that the instrument he signed should be
his will at the time of affixing his signature thereto.

In the present case, petitioner assails the validity of
Placido Valmontes will by imputing fraud in its execution
and challenging the testators state of mind at the time.


Existence of Fraud in the
Execution of a Will

Petitioner does not dispute the due observance of
the formalities in the execution of the will, but maintains
that the circumstances surrounding it are indicative of the
existence of fraud. Particularly, she alleges that
respondent, who is the testators wife and sole beneficiary,
conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is
allegedly reflected in the varying dates of the execution
and the attestation of the will.

Petitioner contends that it was highly dubious for
a woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who [was]
35

thrice her age x x x and who happened to be [a] Fil-
American pensionado,
[11]
thus casting doubt on the
intention of respondent in seeking the probate of the
will. Moreover, it supposedly defies human reason, logic
and common experience
[12]
for an old man with a severe
psychological condition to have willingly signed a last will
and testament.

We are not convinced. Fraud is a trick, secret
device, false statement, or pretense, by which the subject
of it is cheated. It may be of such character that the
testator is misled or deceived as to the nature or contents
of the document which he executes, or it may relate to
some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will
which, but for the fraud, he would not have made.
[13]


We stress that the party challenging the will bears
the burden of proving the existence of fraud at the time
of its execution.
[14]
The burden to show otherwise shifts
to the proponent of the will only upon a showing of
credible evidence of fraud.
[15]
Unfortunately in this case,
other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.

It is a settled doctrine that the omission of some
relatives does not affect the due execution of a will.
[16]
That
the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who
was more than fifty years his junior, as the sole beneficiary;
and disregarded petitioner and her family, who were the
36

ones who had taken the cudgels of taking care of [the
testator] in his twilight years.
[17]


Moreover, as correctly ruled by the appellate court,
the conflict between the dates appearing on the will does
not invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and
acknowledged on the same occasion.
[18]
More important,
the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to
it in the presence of the testator and of one
another.
[19]
Furthermore, the testator and the witnesses
must acknowledge the will before a notary public.
[20]
In
any event, we agree with the CA that the variance in the
dates of the will as to its supposed execution and
attestation was satisfactorily and persuasively explained by
the notary public and the instrumental witnesses.
[21]


The pertinent transcript of stenographic notes taken
on June 11, 1985, November 25, 1985, October 13, 1986,
and October 21, 1987 -- as quoted by the CA -- are
reproduced respectively as follows:

Atty. Floro Sarmiento:

Q You typed this document exhibit C,
specifying the date June 15 when the
testator and his witnesses were supposed
to be in your office?
A Yes sir.

Q On June 15, 1983, did the testator and his
witnesses come to your house?
A They did as of agreement but unfortunately,
I was out of town.

x x x x x x x
x x

Q The document has been acknowledged on
August 9, 1983 as per acknowledgement
37

appearing therein. Was this the actual date
when the document was acknowledged?
A Yes sir.

Q What about the date when the testator and
the three witnesses affixed their respective
signature on the first and second pages of
exhibit C?
A On that particular date when it was
acknowledged, August 9, 1983.

Q Why did you not make the necessary
correction on the date appearing on the
body of the document as well as the
attestation clause?
A Because I do not like anymore to make some
alterations so I put it in my own handwriting
August 9, 1983 on the acknowledgement.
(tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that
it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9,
1983, will you look at this document and tell
us this discrepancy in the date?
A We went to Atty. Sarmiento together with
Placido Valmonte and the two witnesses;
that was first week of June and Atty.
Sarmiento told us to return on the 15
th
of
June but when we returned, Atty. Sarmiento
was not there.

Q When you did not find Atty. Sarmiento on
June 15, 1983, did you again go back?
A We returned on the 9
th
of August and there
we signed.

Q This August 9, 1983 where you said it is
there where you signed, who were your
companions?
A The two witnesses, me and Placido
Valmonte. (tsn, November 25, 1985, pp. 7-
8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty.
Floro Sarmiento, three times?

x x x x x x x
x x

A The reason why we went there three times
is that, the first week of June was out first
time. We went there to talk to Atty.
Sarmiento and Placido Valmonte about the
last will and testament. After that what they
have talked what will be placed in the
testament, what Atty. Sarmiento said was
that he will go back on the 15
th
of
June. When we returned on June 15, Atty.
Sarmiento was not there so we were not
able to sign it, the will. That is why, for the
third time we went there on August 9 and
that was the time we affixed our signature.
(tsn, October 13, 1986, pp. 4-6)
38


Josie Collado:

Q When you did not find Atty. Sarmiento in his
house on June 15, 1983, what transpired?
A The wife of Atty. Sarmiento told us that we
will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to
the house of Atty. Sarmiento?
A Yes, Sir.

Q For what purpose?
A Our purpose is just to sign the will.

Q Were you able to sign the will you
mentioned?
A Yes sir. (tsn, October 21, 1987, pp. 4-5)
[22]


Notably, petitioner failed to substantiate her claim
of a grand conspiracy in the commission of a
fraud. There was no showing that the witnesses of the
proponent stood to receive any benefit from the
allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence
of its due execution.
[23]
Their testimony favoring it and
the finding that it was executed in accordance with the
formalities required by law should be affirmed,absent any
showing of ill motives.
[24]



Capacity to Make a Will

In determining the capacity of the testator to make
a will, the Civil Code gives the following guidelines:

Article 798. In order to make a will it is
essential that the testator be of sound mind at the
time of its execution.

Article 799. To be of sound mind, it is not
necessary that the testator be in full possession of
all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or shattered by
disease, injury or other cause.

It shall be sufficient if the testator was able
at the time of making the will to know the nature
of the estate to be disposed of, the proper objects
of his bounty, and the character of the
testamentary act.

39

Article 800. The law presumes that every
person is of sound mind, in the absence of proof
to the contrary.

The burden of proof that the testator was
not of sound mind at the time of making his
dispositions is on the person who opposes the
probate of the will; but if the testator, one month,
or less, before making his will was publicly known
to be insane, the person who maintains the
validity of the will must prove that the testator
made it during a lucid interval.


According to Article 799, the three things that the
testator must have the ability to know to be considered of
sound mind are as follows: (1) the nature of the estate to
be disposed of, (2) the proper objects of the testators
bounty, and (3) the character of the testamentary
act. Applying this test to the present case, we find that the
appellate court was correct in holding that Placido had
testamentary capacity at the time of the execution of his
will.

It must be noted that despite his advanced age, he
was still able to identify accurately the kinds of property
he owned, the extent of his shares in them and even their
locations. As regards the proper objects of his bounty, it
was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution,
intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind
is Alsua-Betts v. CA,
[25]
which held thus:

"Between the highest degree of soundness
of mind and memory which unquestionably
carries with it full testamentary capacity, and that
40

degrees of mental aberration generally known as
insanity or idiocy, there are numberless degrees
of mental capacity or incapacity and while on one
hand it has been held that mere weakness of
mind, or partial imbecility from disease of body, or
from age, will not render a person incapable of
making a will; a weak or feebleminded person
may make a valid will, provided he has
understanding and memory sufficient to enable
him to know what he is about to do and how or to
whom he is disposing of his property. To
constitute a sound and disposing mind, it is not
necessary that the mind be unbroken or
unimpaired or unshattered by disease or
otherwise. It has been held that testamentary
incapacity does not necessarily require that a
person shall actually be insane or of unsound
mind."
[26]



WHEREFORE, the Petition is DENIED, and the
assailed Decision and Resolution of the Court of Appeals
are AFFIRMED. Costs against petitioner.

SO ORDERED.





















41

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate
Justices, Intermediate Appellate Court, First Division (Civil Cases), and
BAYANI MA. RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J .:
Before us is an appeal from the Decision dated 11 April 1986
1
of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 1983
2
of the Regional Trial
Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament
3
with codicil
4
of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial
will entitled "Huling Habilin" wherein he disinherited an illegitimate son
(petitioner) and expressly revoked a previously executed holographic will at
the time awaiting probate before Branch 4 of the Regional Trial Court of sta.
Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not
read the final draft of the will himself. Instead, private respondent, as the
lawyer who drafted the eight-paged document, read the same aloud in the
presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies
previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate
on 9 December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed
changing some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from glaucoma. But the
disinheritance and revocatory clauses were unchanged. As in the case of
the notarial will, the testator did not personally read the final draft of the
codicil. Instead, it was private respondent who read it aloud in his presence
and in the presence of the three instrumental witnesses (same as those of
the notarial will) and the notary public who followed the reading using their
own copies.
A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with
the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna.
5
Petitioner, in turn, filed an Opposition on the following grounds: that
the will sought to be probated was not executed and attested as required by
law; that the testator was insane or otherwise mentally incapacitated to make a
will at the time of its execution due to senility and old age; that the will was
executed under duress, or influence of fear and threats; that it was procured by
undue and improper pressure and influence on the part of the beneficiary who
stands to get the lion's share of the testator's estate; and lastly, that the
signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied
upon in the Opposition, a Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at the
time his "Huling Habilin" and the codicil attached thereto was executed; that
since the reading required by Art. 808 of the Civil Code was admittedly not
complied with, probate of the deceased's last will and codicil should have
been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review
with the following findings: that Brigido Alvarado was not blind at the time his
last will and codicil were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with when both
documents were read aloud to the testator with each of the three
instrumental witnesses and the notary public following the reading with their
respective copies of the instruments. The appellate court then concluded
that although Art. 808 was not followed to the letter, there was substantial
compliance since its purpose of making known to the testator the contents of
the drafted will was served.
42

The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article complied
with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3)
feet" by reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an eye specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify
Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope of
the term as it is used in Art. 808. To support his stand, petitioner presented
before the trial court a medical certificate issued by Dr. Salvador R. Salceda,
Director of the Institute of Opthalmology (Philippine Eye Research
Institute),
6
the contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private respondent.
7
Dr.
Roasa explained that although the testator could visualize fingers at three (3)
feet, he could no longer read either printed or handwritten matters as of 14
December 1977, the day of his first consultation.
8

On the other hand, the Court of Appeals, contrary to the medical testimony,
held that the testator could still read on the day the will and the codicil were
executed but chose not to do so because of "poor eyesight."
9
Since the
testator was still capable of reading at that time, the court a quo concluded that
Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still
capable of reading at the time his will and codicil were prepared, the fact
remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor,"
10
"defective,"
11
or "blurred"
12
vision making it necessary
for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez
13
provides an insight
into the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they
are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators
but also to those who, for one reason or another, are "incapable of reading
the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due
to his "poor," "defective," or "blurred" vision, there can be no other course for
us but to conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to him, he
had no way of ascertaining whether or not the lawyer who drafted the will
and codicil did so confortably with his instructions. Hence, to consider his
will as validly executed and entitled to probate, it is essential that we
ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will
shall be read twice; once, by one of the instrumental witnesses and, again,
by the notary public before whom the will was acknowledged. The purpose
is to make known to the incapacitated testator the contents of the document
before signing and to give him an opportunity to object if anything is contrary
to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent)
who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808
requires.
Private respondent however insists that there was substantial compliance
and that the single reading suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compliance or compliance to
43

the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution of wills are intended to
protect the testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the testamentary
privilege.
14

In the case at bar, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses, and
the notary public. Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of the will and
codicil were not sufficiently made known and communicated to the testator.
On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of
Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft.
15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the document were of
his own free will. Brigido answered in the affirmative.
16
With four persons
following the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was read to him
(those which he affirmed were in accordance with his instructions), were the
terms actually appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of the
law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will.
17

As a final word to convince petitioner of the propriety of the trial court's
Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan,
18
to wit:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
the substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on the subject
should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a
will. So 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 will, must be
disregarded (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are
unwilling to cast these aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e.,
to make known to the incapacitated testator the contents of the draft of his
will, had already been accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending, this
decision is immediately executory. Costs against petitioner.
44

SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.






































45

G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE
JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO
ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de
Jesus.

GUTIERREZ, JR., J .:
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the Intestate
Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by
petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de
Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be the
holographic Will of the deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana R. de
Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to
her children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and
states: "This is my win which I want to be respected although it is not written
by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of
Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified
that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their
mother and positively Identified her signature. They further testified that their
deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when
said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did
not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads:
46

WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required by the
law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present
Civil Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in the execution
of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy
The underlying and fundamental objectives permeating the
provisions of the law on wigs in this Project consists in the
liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his
last wishes, but with sufficien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that
any disposition made by the testator is better than that which
the law can make. For this reason, intestate succession is
nothing more than a disposition based upon the presumed
will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements
in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11
SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have
been executed substantially in accordance with the
requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud, lean
47

towards its admission to probate, although the document
may suffer from some imperfection of language, or other
non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the objective or
purpose sought to be accomplished by such requisite is actually attained by
the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled
that:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their
truth and authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, or
of a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of Wins
and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed
by the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositor-respondent Luz Henson
is that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article
810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from
is REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente,
JJ., concur.














48

G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J .:
On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed
a petition before the Court of First Instance of Batangas, Branch VI, Lipa
City, for the probate of her holographic Will executed on December 24,
1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare
thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of
Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state a
suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814
of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate
the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September
3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National
Bureau of Investigation for examination. The NBI reported
that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted to probate although
the alterations and/or insertions or additions above-
mentioned were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code. The petitioner
contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves
agreed thru their counsel to submit the Document to the NBI
FOR EXAMINATIONS. This is untenable. The parties did not
agree, nor was it impliedly understood, that the oppositors
would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of
the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to
be authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the admission to
probate of Exhibit "C".
49

WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of
her holographic Will would be contrary to her right of testamentary
disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition
for Review on certiorari on the sole legal question of whether or not
theoriginal unaltered text after subsequent alterations and insertions were
voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most only
as respects the particular words erased, corrected or interlined.1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla
de jurisprudencia establecida en la sentencia de 4 de Abril de 1895."
2

However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication
by the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix.
But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with
certitude. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el
688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras tachadas,
enmendadas o entre renglones no salvadas por el testador
bajo su firnia segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al testamento
mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la
validez del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento, vinieran a anular este,
y ya porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el art. 26
de la ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma
prevenida, paro no el documento que las contenga, y con
mayor motivo cuando las palabras enmendadas, tachadas,
o entrerrenglonadas no tengan importancia ni susciten duda
alguna acerca del pensamiento del testador, o constituyan
meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar saan
de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador manifiesta en el
documento. Asi lo advierte la sentencia de 29 de Noviembre
de 1916, que declara nulo un testamento olografo por no
estar salvada por el testador la enmienda del guarismo
ultimo del ao en que fue extendido
3
(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
50

SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.


Separate Opinions

TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is
bound by the trial court's factual finding that the peculiar alterations in the
holographic will crossing out Rosa's name and instead inserting her brother
Gregorio's name as sole heir and "sole executrix" were made by the testatrix
in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic wig in order
to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the
second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as "sole executrix" is initialed.) Probate of the radically
altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the
trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and
both Rosa and Gregorio as her next of kill succeed to her intestate estate.


Separate Opinions
TEEHANKEE, J ., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is
bound by the trial court's factual finding that the peculiar alterations in the
holographic will crossing out Rosa's name and instead inserting her brother
Gregorio's name as sole heir and "sole executrix" were made by the testatrix
in her own handwriting. (I find it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic wig in order
to avoid any doubts as to her change of heir. It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as sole heir is not even initialed by the testatrix. Only the
second alteration crossing out "sister Rosa K. Kalaw" and inserting "brother
Gregorio Kalaw" as "sole executrix" is initialed.) Probate of the radically
altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the
trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and
both Rosa and Gregorio as her next of kill succeed to her intestate estate.