THIRD DIVISION

G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
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
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 # 1437-977-81
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 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-inlaw, 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.
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. Sioca13
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. Florentino19 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 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 Appeals26 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.)
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 and Taboada. 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. Cagro36 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) Justices38 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.
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 ngayong 10 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. 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.

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FIRST DIVISION
G.R. No. 131953

June 5, 2002

MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners,

vs.
THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA, ESTRELLA M. CAETE,
LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C. NATIVIDAD namely, OSCAR C. NATIVIDAD,
OLGA NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD, RICHARD NATIVIDAD, RAYMUND NATIVIDAD,

RICHIE NATIVIDAD, SONIA NATIVIDAD and ENCARNACION CABATINGAN VDA. DE TRINIDAD, ALFREDO
CABATINGAN and JESUSA C. NAVADA, respondents.
AUSTRIA-MARTINEZ, J.:
Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is the
sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa.
The facts of the case are as follows:
On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a "Deed of
Conditional of Donation (sic) Inter Vivos for House and Lot" covering one-half () portion of the former's house and lot
located at Cot-cot, Liloan, Cebu.1 Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan
on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land - one located in Cogon,
Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas
Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a
portion of the Masbate property (80,000 sq. m.). 2 These deeds of donation contain similar provisions, to wit:
"That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does
hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property,
together with the buildings and all improvements existing thereon, to become effective upon the death of the
DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the
present donation shall be deemed automatically rescinded and of no further force and effect; x x x"3
(Emphasis Ours)
On May 9, 1995, Conchita Cabatingan died.
Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue,
Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as Civil
Case No. MAN-2599, seeking the annulment of said four (4) deeds of donation executed on January 14, 1995.
Respondents allege, inter alia, that petitioners, through their sinister machinations and strategies and taking advantage of
Conchita Cabatingan's fragile condition, caused the execution of the deeds of donation, and, that the documents are void
for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that
these are donations mortis causa.4 Respondents prayed that a receiver be appointed in order to preserve the disputed
properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas
Cabatingan.5
Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita Cabatingan freely,
knowingly and voluntarily caused the preparation of the instruments. 6
On respondents' motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of
respondents, with the following dispositive portion:
"WHEREREFORE, and in consideration of all the foregoing, judgment is hereby rendered in favor of the plaintiffs
and against the defendant and unwilling co-plaintiff with regards (sic) to the four Deeds of Donation Annexes "A",
"A-1", "B" and Annex "C" which is the subject of this partial decision by:
Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa and for
failure to comply with formal and solemn requisite under Art. 806 of the New Civil Code;
b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the deceased
Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this partial decision,
as mandated under Art. 777 of the New Civil Code;
SO ORDERED."7
The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed
on January 14, 1995 are null and void for failure to comply with the requisites of Article 806 of the Civil Code on
solemnities of wills and testaments.8
Raising questions of law, petitioners elevated the court a quo's decision to this Court,9 alleging that:
"THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED RULINGS OF THIS
HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF DONATIONS AS INTER VIVOS OR
MORTIS CAUSA AND, INSTEAD, PROCEEDED TO INTERPRET THE DONATIONS IN QUESTION IN A
MANNER CONTRARY THERETO."10
Petitioners insist that the donations are inter vivos donations as these were made by the late Conchita Cabatingan "in
consideration of the love and affection of the donor" for the donee, and there is nothing in the deeds which indicate that
the donations were made in consideration of Cabatingan's death. 11 In addition, petitioners contend that the stipulation on

rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as
inter vivos.
Petitioners' arguments are bereft of merit.
In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive." 12 In
determining whether a donation is one of mortis causa, the following characteristics must be taken into account:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the
same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may
be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;
and
(3) That the transfer should be void if the transferor should survive the transferee. 13
In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain
any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death. 14 The phrase "to
become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to
transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the
donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of
donation, to wit:
"That the DONEE does hereby accept the foregoing donation mortis causa under the terms and conditions set
forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity
of the DONOR."
xxx
"SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which
consists of two (2) pages x x x."15
That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations as
inter vivos because transfers mortis causa may also be made for the same reason.16
Well in point is National Treasurer of the Phils. v. Vda. de Meimban.17 In said case, the questioned donation contained
the provision:
"That for and in consideration of the love and affection which the DONOR has for the DONEE, the said Donor by
these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ONE
HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the above
described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan Subdivision of
Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become effective upon the
death of the DONOR. (italics supplied.)"18
Notably, the foregoing provision is similar to that contained in the donation executed by Cabatingan. We held in Meimban
case that the donation is a mortis causa donation, and that the above quoted provision establishes the donor's intention to
transfer the ownership and possession of the donated property to the donee only after the former's death. Further:
"As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been complied
with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no effect. As we have
held in Alejandro v. Geraldez (78 SCRA 245,253), "If the donation is made in contemplation of the donor's death,
meaning that the full or naked ownership of the donated properties will pass to the donee because of the donor's
death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be
embodied in a last will and testament. (Citing Bonsato v. Court of Appeals, 95 Phil. 481)." 19
We apply the above rulings to the present case. The herein subject deeds expressly provide that the donation shall be
rescinded in case petitioners predecease Conchita Cabatingan. As stated in Reyes v. Mosqueda,20 one of the decisive
characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the
donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take
effect during her lifetime and that the ownership of the properties donated be transferred to the donee or independently of,
and not by reason of her death, she would have not expressed such proviso in the subject deeds.1wphi1.nt
Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary
provisions21 and as such, said deeds must be executed in accordance with the requisites on solemnities of wills and
testaments under Articles 805 and 806 of the Civil Code, to wit:

"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.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)
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. (n)"
The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were
not executed in the manner provided for under the above-quoted provisions of law.
Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.

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EN BANC
[G.R. No. L-18979. June 30, 1964.]
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTA. CELSO ICASIANO,
petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinsin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enriquez Icasiano.
DECISION

REYES, J.B.L., J p:
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.
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 Dr. 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 attorney 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's 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 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 copy were duly
acknowledged before Notary Public Jose Oyengco Ong 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 oppositorsappellants 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 occasion, 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 appealing in the duplicate original were not
written by the same hand, 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 that 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 there 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 after 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 that 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. Coronel, 45 Phil. 216).
Diversity of apportionment is the usual reason for making a testament; otherwise, the decedent might as well die intestate.
The testamentary disposition that the heirs should not inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the estate being diverted into the hands of non- heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated on another occasion. It is also well to note that, 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, 88 Phil. 260; 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 mark the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in
order to guard against fraud and bad faith but without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh. A-1) is
not entitled to probate. Since they opposed probate of the original because it lacked one signature in its third page, it is
easily discerned that oppositors-appellants run here into a dilemma: if the original is defective and invalid, then in law
there is no other will but the duly signed carbon duplicate (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.

EN BANC
[G.R. No. 6285. February 15, 1912.]
PEDRO BARUT, petitioner-appellant, vs. FAUSTINO CABACUNGAN ET AL., opponents-appellees.
A. M. Jimenez, for appellant.
Ramon Querubin, for appellees.
DECISION
MORELAND, J p:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No. 6284, 1
just decided by this court, wherein there was an application for the probate of an alleged last will and testament of the
same person the probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament of Maria
Salomon, deceased. It is alleged in the petition for probate that Maria Salomon died on the 7th day of November, 1908, in
the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907. Severo Agayan, Timotea
Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms
of said will Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish appears
at page 11. After disposing of her property the testatrix revoked all former wills by her made. She also stated in said will
that being unable to read or write, the same had been read to her by Ciriaco Concepcion and Timotea Inoselda and that
she had instructed Severo Agayan to sign her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the deceased on various
grounds, among them that a later will had been executed by the deceased. The will referred to as being a later will is the
one involved in case No. 6284 already referred to. Proceedings for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by the court in both cases for the purpose of considering
them together.
In the case before us the learned probate court found that the will was not entitled to probate upon the sole
ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will for and on her behalf
looked more like the handwriting of one of the other witnesses to the will than that of the person whose handwriting it was
alleged to be. We do not believe that the mere dissimilarity in writing thus mentioned by the court is sufficient to overcome
the uncontradicted testimony of all the witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all of the witnesses to the will. It is immaterial who
writes the name of the testatrix provided it is written at her request and in her presence and in the presence of all the
witnesses to the execution of the will.
The court seems, by inference at least, to have had in mind that under the law relating to the execution of a will it
is necessary that the person who signs the name of the testatrix must afterwards sign his own name; and that, in view of
the fact that, in the case at bar, the name signed below that of the testatrix as the person who signed her name, being,
from its appearance, not the same hand-writing as that constituting the name of the testatrix, the will is accordingly invalid,
such fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not believe that this
contention can be sustained. Section 618 of the Code of Civil Procedure reads as follows:
"No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor
charge or affect the same, unless it be in writing and signed by the testator, 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 each other. . . ."
This is the important part of the section under the terms of which the court holds that the person who signs the
name of the testator for him must also sign his own name. The remainder of the section reads:
"The attestation shall state the fact that the testator signed the will, or caused it to be signed by some other
person, at his express direction, in the presence of three witnesses, and that they attested and subscribed it in his
presence and in the presence of each other. But the absence of such form of attestation shall not render the will invalid if it
is proven that the will was in fact signed and attested as in this section provided."
From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant whether the
person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the
name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and
subscribed it in her presence and in the presence of each other. That is all the statute requires. It may be wise as a
practical matter that the one who signs the testator's name signs also his own; but that is not essential to the validity of the
will. Whether one person or another signed the name of the testatrix in this case is absolutely unimportant so far as the
validity of her will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court, if
it did lay it down, is absolutely unnecessary under the law; and the reasons underlying the provisions of the statute
relating to the execution of wills do not in any sense require such a provision. From the standpoint of language it is an
impossibility to draw from the words of the law the inference that the person who signs the name of the testator must sign
his own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is unable to write may
be signed by another by express direction to any instrument known to the law. There is no necessity whatever, so far as
the validity of the instrument is concerned, for the person who writes the name of the principal in the document to sign his
own name also. As a matter of policy it may be wise that he do so inasmuch as it would give such intimation as would
enable a person proving the document to demonstrate more readily the execution by the principal. But as a matter of
essential validity of the document, it is unnecessary. The main thing to be established in the execution of the will is the
signature of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is none
the less valid, and the fact of such signature can be proved as perfectly and completely when the person signing for the
principal omits to sign his own name as it can when he actually signs. To hold a will invalid for the lack of the signature of
the person signing the name of the principal is, in the particular case, a complete subrogation of the law of wills, as it
rejects and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which we have herein laid
down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs. Concepcion
(Phil. Rep., 551). Not one of these cases is in point.
The headnote in the case last above stated gives an indication of what all of the cases are and the question
involved in each one of them. It says:
"The testatrix was not able to sign her name to the will, and she requested another person to sign it for her.
Instead of writing her name he wrote his own upon the will. Held, That the will was not duly executed."
All of the above cases are precisely of this character. Every one of them was a case in which the person who
signed the will for the testator wrote his own name to the will instead of writing that of the testator, so that the testator's
name nowhere appeared attached to the will as the one who executed it. The case of Ex parte Arcenas contains the
following paragraph:

"Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the
following manner: 'John Doe, by the testator, Richard Roe ;' or in this form: 'By the testator. John Doe, Richard Roe.' All
this must be written by the witness signing at the request of the testator."
The only question for decision in that case, as we have before stated, was presented by the fact that the person
who was authorized to sign the name of the testator to the will actually failed to sign such name but instead signed his
own thereto. The decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no reason
whatever why the will involved in the present litigation should not be probated. The due and legal execution of the will by
the testatrix is clearly established by the proofs in this case. Upon the facts, therefore, the will must be probated. As to the
defense of a subsequent will, that is resolved in case No. 6284 of which we have already spoken. We there held that said
later will was not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to enter an order in
the usual form probating the will involved in this litigation and to proceed with such probate in accordance with law.

EN BANC
G.R. No. L-20475

March 19, 1924

In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-appellant.

C.K. Langleon for petitioner and appellant.
ARAULLO, C.J.:
On March 3, 1921, Mamerta Base instituted this proceeding in the Court of First Instance of Leyte for the probate of the
will, Exhibit A, executed, according to her, by the Chinaman Tan Diuco, a resident of the municipality of Malitbog of said
province, who died on December 8, 1920. That court denied the probate of the will on November 2, 1922, and the
petitioner brought the case on appeal to this court, alleging that the lower court erred in holding that said will was not
signed by three instrumental witnesses and in not allowing it to probate.
After a hearing on the petition, the Court of First Instance entered the order appealed from, in which it is found that said
will was executed with all the solemnities prescribed by Act No. 2645, except that it was not signed by three instrumental
witnesses beside the signature of the testator and before the attestation clause, and this fact is the ground upon which the
petition was denied.
The document in question, Exhibit A, appears to have been signed by Simplicio Sala by order of the testator, whose name
is before the said signature, by reason of the latter's incapacity on account of his weakness and the trembling of his hand,
the testator also stating that he directed said Simplicio Sala to sign it in his name and in the presence of three witnesses
who also signed with him at the bottom of said document, and on the left margin of each of its three pages correlatively
numbered in letters by Sala in the name of the testator Tan Diuco and by the witnesses therein mentioned, named Pablo
Maturan, Ladislao Fenomeno, and Enrique Pearedondo. After the signature of the testator, Tan Diuco by Simplicio Sala,
the following paragraph appears:
We, the undersigned witnesses to the forgoing will, do hereby state that the testator signed this will and each of its
sheets in the presence of all and each of us, and we and each of us likewise did sign this will and all of its sheets
in the presence of the testator and each of us, witnesses.
"TAN DIUCO
By "SIMPLICIO SALA
"LADISLAO FENOMENO
"PABLO MATURAN
"ENRIQUE PEAREDONDO"
Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, provides, indeed, among the necessary
requirements before a will can be probated, that it be attested and signed by three or more credible witnesses in the
presence of the testator and of each other. And said section, as amended, further provides as follows:
* * * 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, on the left margin, and said pages shall be numbered
correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or
pages used, upon which the will is written, and that 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.
Instrumental witness, as defined by Escriche in his Diccionario Razonado de Legislacion y Jurisprudencia, volume 4,
page 1115, is one who takes part in the execution of an instrument or writing.
At present and under the laws now in force, particularly Act No. 2645 amendatory to said section 618 of the Code of Civil
Procedure, when a will is to be executed, the testator draws or writes it personally or through another person and signs it
also personally, or if he is physically incapacitated, as in the instant case, through another person who may or may not be
the one who prepared or wrote the will, that is, the document constituting the testator's last will and testament. The will
having thus been prepared and before it is signed by the testator or the person acting in his stead, or the one directed by
him to sign it in his name, in which case the name of the testator is written before that of the signer, as above stated, in
order that said document may have the character of a valid will, the testator gathers three or more credible witnesses and
tells them that the contents of said document is his will, without informing them of its contents, and then the testator, or the
person directed by him to do so, signs it in the presence of the testator and of each other, and the testator or the person
acting in his stead, as well as the three witnesses sign on the left margin of each page or sheet, which must be numbered
correlatively in letters on the upper part of the page. These witnesses are the witnesses, referred to in the aforesaid law as
instrumental witnesses, for the simple reason that they took part in the execution of an instrument or document known as
will, their participation being limited to the acts aforementioned.
In dealing with attestation, said section 618 of the Code of Civil Procedure, as amended by Act No. 2645, does not say
that said witnesses must be different from those who signed the attestation clause, for in the first part of said section, after
speaking of the signature of the testator or the person signing in his place, it adds, "and attested and subscribed by three
or more credible witnesses in the presence of the testator and of each other," from which it clearly follows that the same
witnesses who signed on the left margin of each page of the document presented by the testator to them as his will, must
be the ones who should sign the attestation clause, inasmuch as they alone can certify the facts to be stated in said
clause, for having taken a direct part therein, as they saw the testator sign the will, or the person requested by him to sign
all the sheets of the will, that is, the document constituting his last will and testament, and affirm that it was signed under
his express direction in the presence of said witnesses and that all the sheets thereof had also been signed by them in the

presence of said testator and of each of them, as stated in the attestation clause of the will of the deceased Tan Diuco,
with the other details appropriate in said clause.
Besides, as may be seen, the said three witnesses who signed the attestation clause, did so also on the left margin and
beside the signature of the testator or of Simplicio Sala who signed by order of the latter, and if account is taken of the fact
that these witnesses are "instrumental" witnesses, as above demonstrated, and they have made reference to their own
signatures, as well as that of the testator and of the person who signed by the latter's order below the attestation clause, it
is evident that in the instant case, it is merely a matter of technicality devoid of any importance as to the probate of the will
that said witnesses are called instrumental witnesses, as if they were different from those who have to sign the attestation
clause, for all of them are but the same witnesses; and, as this court held in the case of Abangan vs. Abangan (40 Phil.,
476), "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. 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 a
interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be disregarded;" which doctrine must
be applied in this case, in view of the facts herein mentioned and what has been above demonstrated.
For all of the foregoing, the order appealed from is reversed, and the document, Exhibit A, presented by the proponent as
the last will and testament of the deceased Tan Diuco is admitted to probate, without special finding as to costs of both
instances. So ordered.

EN BANC
G.R. No. L-9150

March 31, 1915

MARIANO LEAO, petitioner-appellant,

vs.
ARCADIO LEAO, objector-appellee.
Vicente Llanes for appellant.
Severo Hernando for appellee.
CARSON, J.:
The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed her costs against her name,
attached by some other person to the instrument offered for probate which purports to be her last will and testament, in
the presence of three witnesses whose names are attached to the attesting clause, and that they attested and subscribed
the instrument in her presence and in the presence of each other.
We are of the opinion that the placing of the cross opposite her name at the construction of the instrument was a sufficient
compliance with the requirements of section 618 of the Code of Civil Procedure, which prescribes that except where wills
are signed by some other person than the testator in the manner and from herein indicated, a valid will must be signed by
the testator. The right of a testator to sign his will by mark, executed animo testandi has been uniformly sustained by the
courts of last resort of the United States in construing statutory provisions prescribing the mode of execution of wills in
language identical with, or substantially similar to that found in section 618 of our code, which was taken from section
2349 of the Code of Vermont. (Page on Wills, par. 173, and the cases there cited in support of the doctrine just
announced.)
The trial judge was of contrary opinion, and declined to admit the instrument to probate as the last will and testament of
the decedent. We are of opinion, however, that the evidence of record satisfactorily establishes the execution of that
instrument as and for her last will and testament in the manner and form prescribed by law.
The judgment entered in the court below should therefore be reversed, without costs in this instance, and the record
remanded to the court below, where judgment will be entered admitting the instrument in question to probate in
accordance with the prayer of the petitioner. So ordered.

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EN BANC
[G.R. No. L-4067. November 29, 1951.]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA
LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto, for petitioner.

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

DECISION
PARAS, C.J p:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3,
1943. The will is written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed
by himself and also by us below his name and of this attestation clause and that of the left margin of the three pages
thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and
understood by the testator, and it bears the corresponding number in letter which compose of three pages and all of them
were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE"
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed
below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged to have written a cross
immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte,
ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins of the three pages and at
the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each
and every one of the witnesses; (2) to certify that after the signing of the name of the testator by Atty. Javier at the former's
request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the
presence of the testator and of each other. LLphil
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code of Civil
Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written by the testator after his name is a sufficient
signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and
Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and
Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one
of the ways by which he signed his name. After mature reflection, we are not prepared to liken the mere sign of a cross to
a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation
clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter in the presence of the
testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.

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EN BANC
[G.R. No. L-15153. August 31, 1960.]
In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana. LUCIO BALONAN,
petitioner-appellee, vs. EUSEBIA ABELLANA, ET AL., oppositors-appellants.
T. de los Santos for appellee.

Climaco & Climaco for appellants.

DECISION
LABRADOR, J p:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one
Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is
made:
"The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh. 'A', was
signed in accordance with law; and in admitting the will to probate."
In view of the fact that the appeal involves a question of law the said court has certified the case to us.
The facts as found by the trial court are as follows:
"It appears on record that the last Will and Testament (Exhibit 'A'), which is sought to be probated, is written in the
Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is
signed by Juan Bello and under his name appears typewritten 'Por la testadora Anacleta Abellana, residence Certificate A1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page appears the signature of the three (3)
instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the
signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental
witnesses. On the second page, which is the last page of the said last Will and Testament, also appears the signature of
the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under
whose name appears handwritten the following phrase, 'Por la Testadora Anacleta Abellana'. The will is duly
acknowledged before Notary Public, Attorney Timoteo de los Santos." (Emphasis supplied.)
The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten
statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of the law
prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
"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." (Emphasis supplied.)
The clause "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," is practically the same as the provisions of Section 618
of the Code of Civil Procedure (Act No. 190) which reads as follows:
"No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge
or affect the same, unless it be in writing and signed by the testator, 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 each other. . . ." (Emphasis supplied)
Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the
testator's name must be written by some other person in his presence and by his express direction. Applying this provision
this Court said in the case of Ex Parte Pedro Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does
not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testator's
request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by
section 618 above referred to, but it is necessary that the testator's name be written by the person signing in his stead in
the place where he would have signed if he knew how or was able so to do, and this in the testator's presence and by his
express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be
allowed to be probated.
"Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the
following manner:
'John Doe by the testator, Richard Roe; or in this form: 'By the testator, John Doe, Richard Roe.' All this must be
written by the witness signing at the request of the testator.
"Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the
full name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to
comply with the law is a substantial defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it."
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case of Barut vs.
Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was
signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or
not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330;
Garcia vs. Lacuesta, 90 Phil., 489). cdphil
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said
Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that
the testator must himself sign the will, or that his name be affixed thereto by Some other person in his presence and by his
express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to declare that the
said will of the deceased Anacleta Abellana may not be admitted to probate.
Wherefore, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With
costs against petitioner.

[blank]

FIRST DIVISION
[G.R. No. L-3907. March 12, 1908.]
ROMAN ABAYA, petitioner-appellant, vs. DONATA ZALAMERO, respondent-appellee.
L. Joaquin, for appellant.
Escueta and Lim, for appellee.

DECISION
TORRES, J p:
On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna, for the
allowance of the will executed by Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th of October, 1905,
and produced in court the said will, which was written in Tagalog dialect. Donata Zalamero opposed the petition, alleging
that the will had been executed under pressure and unlawful and improper influence on the part of those who were to
benefit thereby, and that it had not been executed and signed in accordance with the provisions of section 618 of the
Code of Civil Procedure. A day was appointed for the hearing and in the course of the proceedings the witnesses offered
by both parties were examined; on the 10th of January, 1907, the court refused to admit the will of said Juan Zalamero, as
requested by Roman Abaya; Abaya appealed from the decision and moved for a new trial which motion has not been
finally acted upon by the court; for this reason the petitioner, now before this court, still insists thereon for the effects of the
appeal which he had interposed, and has submitted a certified copy of the proceedings to which the assignment of errors
presented by him refers.
Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the 29th of October,
1905, under lawful pressure and influence exercised by those who were thereby benefited; and second, that the said will
was not executed and signed in accordance with the provisions of section 618 of the Code of Civil Procedure.
After an examination of the facts alleged and the evidence adduced by both parties, and considering the case
according to the rules of common sense and sound criticism, it must necessarily be admitted that the weight and
preponderance of the evidence prove in a conclusive manner the authenticity and genuineness of the said will as the real
and true expression of the will of the testator, Juan Zalamero, and for this reason the first point should have been decided
by the court below in a negative sense.
It was not expressly pretended that the said will should be disallowed under the provisions of section 634 of the
Code of Civil Procedure, either because the testator was insane or otherwise mentally incapable to execute such
instrument at the time of its execution, or because it was procured by undue and improper pressure and influence on the
part of the beneficiaries; nor even if such request had been made, could the nullity of the said will have been judicially
declared in view of the lack of satisfactory proof of the presence of such circumstances. Therefore, the court, in order to
disallow the petition, had to disregard them and rest the decision upon the allegation that the will was not executed in
accordance with the provisions of section 618 of the Code of Civil Procedure.
Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in question was
executed with the requirements established by the law in force, and that, therefore, the decision upon the second point
should be against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator and at his own
request, one of the witnesses to the will, Mariano Zaguirre, wrote with his own hand the name and surname of Juan
Zalamero, the testator, and his presence, and that the latter put a cross between them and a note stating that what had
been written before the name and surname of the said Juan Zalamero, with the cross placed at the foot thereof, was his
testament and contained his last will as stated by him when he directed the execution thereof in the presence of the three
witnesses who subscribed it in his presence, and in the presence of each other.
It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name and surname at
the end of his will, did not affix his own signature immediately below the name and surname of Juan Zalamero and below
the cross placed by the latter with the words "by request of the testator Juan Zalamero;" but in the said will are clearly
stated the reason why it was not signed by the testator himself as also the request he made to the witness Zaguirre, and a
repetition thereof was not necessary; further, that this same witness, upon being requested, wrote with his own hand the
name and surname of the testator, who afterwards placed the cross between them, stating that it was his statement, all of
which was written immediately after the said name and surname of the testator and the cross made by him, and the same
was subscribed by the three witnesses in the manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the law have been complied with,
namely, that three witnesses were present at the execution of the will of Juan Zalamero at the date mentioned therein; that
they heard his statement that the said instrument, written and drawn up under his direction, contained his last will; that
they saw and witnessed when, at the express request of the testator, and under his direction, the witness, Mariano
Zaguirre, wrote at the foot of the will the name and surname of Juan Zalamero, and when the latter put the cross between
his written name and surname, each of the witnesses subscribing it at the time and in the presence of each other.
For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should be reversed and
that it be declared, as we now do, that the will executed by the late Juan Zalamero while in life, under date of the 29th of
October, 1905, was executed in accordance with the law, and that therefore it should be duly admitted in order that it may
produce all consequent legal effects, and it is so ordered without any special ruling as to costs.

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EN BANC
[G.R. No. 1641. January 19, 1906.]
GERMAN JABONETA, plaintiff-appellant, vs. RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong & Quintos, for appellant.
Del-Pan, Ortigas & Fisher, for appellees.

DECISION
CARSON, J p:
In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the
lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witnesses, did not
attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular point, being a part of the
testimony of the said Isabelo Jena:
"Q.
Who first signed the will?
"A.
I signed it first, and afterwards Aniceto and the others.
"Q.
Who were those others to whom you have just referred?
"A.
After the witness Aniceto signed the will I left the house, because I was in a hurry, and at the moment
when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign (en actitud de firmar). I believe
he signed, because he was at the table. . . .
"Q.
State positively whether Julio Javellana did or did not sign as a witness to the will.
"A.
I can't say certainly, because as I was leaving the house I saw Julio Javellana with the pen in his hand, in
position ready to sign. I believe he signed.
"Q.
Why do you believe Julio Javellana signed?
"A.
Because he had the pen in his hand, which was resting on the paper, though I did not actually see him
sign.
"Q.
Explain this contradictory statement.
"A.
After I signed I asked permission to leave, because I was in a hurry, and while I was leaving Julio had
already taken the pen in his hand, as it appeared, for the purpose of signing, and when I was near the door I happened to
turn my face and I saw that he had his hand with the pen resting on the will, moving it as if for the purpose of signing.
"Q.
State positively whether Julio moved his hand with the pen as if for the purpose of signing, or whether he
was signing.
"A.
I believe he was signing."
The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the
parties to the proceedings, but the court, nevertheless, found the following facts:
"On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the
document in question, which has been presented for probate as his will:
"Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses, executed the said document as his
will. They were all together, and were in the room where Jaboneta was, and were present when he signed the document,
Isabelo Jena signing afterwards as a witness, at his request, and in his presence and in the presence of the other two
witnesses. Aniceto Jalbuena then signed as a witness to the presence of the testator, and in the presence of the other two
persons who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the room.
As he was leaving the house Julio Javellana took the pen in his hand and put himself in position to sign the will as a
witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator and of the witness Aniceto Jalbuena."
We can not agree with so much of the above findings of facts as holds that the signature of Javellana was not
signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure. The fact
that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his signature to the
will, taken together with the testimony of the remaining witnesses, which shows that Javellana did in fact there and then
sign his name to the will, convinces us that the signature was affixed in the presence of Jena. The fact that he was in the
act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of no
importance. He, with the other witnesses and the testator, has assembled for the purpose of execution the testament, and
were together in the same room for that purpose, and at the moment when the witness Javellana signed the document he
was actually and physically present and in such position with relation to Javellana that he could see everything which took
place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he finally left the room.
"The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be that the
testator may have ocular evidence of the identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
and cases there cited.)"
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if it witnesses are together for the
purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to do so;
and there are many cases which law down the rule that the true test of vision is not whether the testator actually saw the
witness sign, but whether he might have seen him sign, considering his mental and physical condition and position at the
time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator and the witnesses are
equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as required
by the statute, and applying them to the facts proven in these proceedings we are of opinion that the statutory requisites
as to the execution of the instrument were complied with, and that the lower court erred in denying probate to the will on
the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings was
satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore be
admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the
record will be returned to the court from whence it came, where the proper orders will be entered in conformance
herewith. So ordered.

EN BANC
[G.R. No. L-5971. February 27, 1911.]
BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
DECISION
CARSON, J p:

The only question raised by the evidence in this case as to the due execution of the instrument propounded as a
will in the court below, is whether one of the subscribing witnesses was present in the small room where it was executed
at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large room connecting with the smaller room by a doorway, across which was
hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing
witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room with the
testator and the other subscribing witnesses at the time when they attached their signatures to the instrument, and this
finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to
probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital importance in
the determination of this case, as he was of opinion that under the doctrine laid down in the case of Jaboneta vs. Gustilo
(5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the
other describing witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to
have been in the outer room at the time when the testator and the other subscribing witnesses attached their signatures to
the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually
saw each other sign, but whether they might have been seen each other sign, had they chosen to do so, considering their
mental and physical condition and position with relation to each other at the moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course,
does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the
presence of each other if it appears that they would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses
that "at the moment when the witness Javellana signed the document he was actually and physically present and in such
position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper
direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that
the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of
each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing conditions and their position with relation to each other
were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the
doctrine further would open the door to the possibility of all manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will and
testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the appellant.

[blank]

EN BANC
[G.R. No. 26545. December 16, 1927.]
Testate Estate of Florencia R. G MATEO, ET AL., PERFECTO GABRIEL , petitioner-appellee, vs. RITA R.
MATEO, ET AL., opponents-appellants.
R. Gonzalez Lloret, Carlos S. Basa, Thomas Cary Welch and Camus, Delgado & Recto, for appellants.
The appellee in his own behalf.
DECISION

AVANCEA, C.J p:
The judgment appealed from allowed the will of Florencia Mateo dated February 6, 1923, composed of two used
sheets to probate. The will appears to be signed by the testatrix and three witnesses on the left margin of each of the
sheets, by the testatrix alone at the bottom, and by the three witnesses after the attestation clause. The testatrix died on
August 13, 1925. Opposition to such probate was filed by Rita Mateo, the testatrix's sister, and by other relatives.
The three attesting witnesses to this will, testifying in this case, declared that the signatures of the testatrix were
written in their presence and that they signed their names in the presence of the testatrix and of each other.
The testatrix from girlhood knew how to sign her name and did so with her right hand; but, as the right side of her
body later became paralyzed, she learned to sign with her left hand and for many years thereafter, up to the time of her
death, she used to sign with that hand. Opponents allege that Florencia Mateo did not sign this will.
There are three salient arguments among those adduced by the opponents in support of their opposition.
The attesting witnesses testified that the testatrix signed before they did. The signatures of the testatrix on the left
margin of the two sheets of the will are between the signatures of the two witnesses Vidal Raoa and Julio Gabriel, and
below her surname is the signature of the other witness Felicisimo Gabriel. The signatures of Vidal Raoa and Julio
Gabriel are on a level with each other, while that of Felicisimo Gabriel is found a little lower down. The testatrix's
signatures start on the line with Felicisimo Gabriel's signature, but tend to rise and her surname reaches a level with Julio
Gabriel's signature.
It is said that this direction of the testatrix's signature was due to the fact that when it was written Felicisimo
Gabriel's signature was already there, and so she had to write her surname upwards in order to avoid interfering with that
of Felicisimo Gabriel, which would have been the case had she continued on the horizontal line on which she had written
her first name. From this detail it is pretended to draw the inference that the attesting witnesses signed before the
testatrix, contrary to their testimony that she signed before they did. This deduction, however, is unnecessary. It may be
inferred with equal, if not greater, logic that the testatrix signed before him, and when it came to the witness Gabriel's turn,
he, finding the space below the testatrix's signature free, signed his name there. On the other hand, it may be noted that
the testatrix's other signature at the bottom of the will also shows a more or less marked tendency to rise, notwithstanding
the fact that there was no signature with which she might interfere if she continued to write in a straight horizontal line.
Furthermore, if, as the opposition alleges, the testatrix's signature is not genuine and was placed there by another person,
it is strange that the latter should have done so in such a way as to write it above Gabriel's signature while following the
horizontal line, when this could have been avoided by simply putting it a little higher. And this may be attributed to
carelessness in the first case, but it cannot be so explained in the second.
Attention is also called to the apparently different kinds of ink used by the testatrix in her signature and by the
attesting witnesses. Really an examination of these signatures reveals a somewhat deeper intensity of ink in the signature
of the testatrix than in those of the attesting witnesses. It is alleged that this circumstance cannot be reconciled with the
declaration of the attesting witnesses that they used the same pen and ink as the testatrix. But, only one of these
witnesses declared this. The other one was not sure of it and said that he did not perfectly remember this detail. The third
scarcely made reference to this particular. At all events, this apparent difference in ink may be merely due supposing
that the same ink and pen were used to the difference in pressure employed in writing these signatures, as is
reasonable to suppose when we consider that the testatrix was a paralytic and wrote with her left hand; or it may have
been due to the fact that the attesting witnesses dipped lightly in the ink while the testatrix dipped the pen so as to take up
the ink from the bottom of the well. To bring out this irregularity, the opposition presented the expert Del Rosario who
asserted, among other things, that the signature of the testatrix is more recent than that of the attesting witnesses. If this
opinion is correct and if, as alleged, the testatrix's signature is forged, it would mean that the forgers, after having
prepared the will and made the witnesses sign, allowed some time to elapsed before forging the testatrix's signature,
which supposition is not at all probable, nor has it been explained.
At all events, even admitting that there is a certain question as to whether the attesting witnesses signed before or
after the testatrix, or whether or not they signed with the same pen and ink, these are details of such trivial importance,
considering that this will was signed two years before the date on which these witnesses gave their testimony, that it is not
proper to set aside the will for this reason alone.
The attesting witnesses to this will, who testified also as witnesses at the trial of this case, showed themselves to
be intelligent and honest, one of them being a lawyer of twelve years' practice, and there is no reason to reject their
testimony, and to suppose that they were untruthful in testifying, and that they falsified the will in question.
Lastly, attention is called to the unreasonableness of the testatrix in not leaving anything to the principal opponent,
her sister Rita Mateo, and to her nephews and nieces, to whom she had been so affectionate during life. But as to the
affectionate relations between the deceased and the opponents, only the opponent Rita Mateo testified, and she only
stated that she was on good terms with her sister during the latter's lifetime; that the said sister used to give her a sack or
some gantas of rice, and, at times, a little money; that she held all her nephews and nieces in equal regard. But even
supposing that this were so, there is nothing strange in the testatrix having left nothing to the opponents, or in her having
left all of her estate to the only heir instituted in her will, Tomasa Mateo, who is also one of her nieces. And not only is it
not strange, but it seems reasonable, since, according to the evidence of the opposition itself, Tomasa Mateo had been
taken in by the testatrix when the former was but 3 years old, and from then on up to the time of her death had never been
separated from her.
The opposition presented Doctor Banks as expert. He testified that the signatures of the testatrix in the will are not
genuine. The petitioner, on the other hand, presented another expert, Pedro Serrano Laktao, who affirmed that these
signatures are genuine. But, over the testimony of these experts, we have the categorical and positive declaration of
veracious witnesses who affirm that these signatures were written by the testatrix herself.
The judgment appealed from is affirmed, with costs against the appellants. So ordered.
[blank]

FIRST DIVISION
[G.R. No. L-37453. May 25, 1979.]
RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
DECISION

GUERRERO, J p:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973
in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of
First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having
been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the
deceased at the latter's residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in
Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5)
pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as follows:
"PATUNAY NG MGA SAKSI
"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at
kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel
Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page),
sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa
harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D.
Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of
residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their
signatures also appear on the left margin of all the other pages. The will is paged by typewritten words as follows: "Unang
Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of
each page. prLL
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in
accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if
any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother
Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin
na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor,
were bequeathed all properties and estate, real or personal, already acquired, or to be acquired, in her (testatrix's) name,
after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be
the will of the deceased on the following grounds:
1.
that the same is not genuine; and in the alternative
2.
that the same was not executed and attested as required by law;
3.
that, at the time of the alleged execution of the purported will, the decedent lacked testamentary capacity
due to old age and sickness; and in the second alternative
4.
that the purported will was procured through undue and improper pressure and influence on the part of
the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a quo rendered
judgment, the summary and dispositive portions of which read:
"Passing in summary upon the grounds advanced by the oppositor, this Court finds:
"1.
That there is no iota of evidence to support the contention that the purported will of the deceased was
procured through undue and improper pressure and influence on the part of the petitioner, or of some other person for her
benefit;
"2.
That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the
purported will, the deceased lacked testamentary capacity due to old age and sickness;
"3.
That sufficient and abundant evidence warrants conclusively the fact that the purported will of the
deceased was not executed and attested as required by law;
"4.
That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the
purported will allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting
witnesses on April 15, 1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will and testament of the deceased
Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of
Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holing
that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in
the presence of the deceased and of each other as required by law, 2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was
opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their respective Memoranda, 5 and on
August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration
stating that:

"The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will and
testament of Isabel Gabriel was not executed in accordance with law because the same was signed on several occasions,
that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence
of each other.
"The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the
evidence. We have carefully re-examined the oral and documentary evidence of record. There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its
discretion and/or acted without or in excess of its jurisdiction in reversing the findings of fact and conclusions of the trial
court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11,
1973 to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of
the allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and
for insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for Reconsideration
10 which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I.
The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible
witnesses.
II.
The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution
of the will Exhibit "F", was unexpected and coincidental.
III.
The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV.
The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten
words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present
in the same occasion.
V.
The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso.
VI.
The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not physically
present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII.
The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as
proof that the will was improperly executed.
VIII.
The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of
witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in
rejecting said testimonies.
IX.
The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted
and usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X.
The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F",
the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and
content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction,
the factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This
rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista
vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: LibLex
". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been wellsettled that the jurisdiction of this Court in cases brought to us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month
later, this Court, speaking through the then Justice Laurel it was held that the same principle is applicable, even if the
Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a consequent reversal of
its findings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not
reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly
because its premises are borne out by the record or based upon substantial evidence and what is more, when such
findings are correct. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the
Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the
facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals
are contrary to that of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven
evidence becomes necessary. The general rule We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the
witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably
considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same
Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well-known

meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wills
with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of
a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a will. These
Articles state:
"Art. 820.
Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb,
and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code.
"Art. 821.
The following are disqualified from being witnesses to a will:
(1)
Any person not domiciled in the Philippines,
(2)
Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as
to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in
Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his
answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or
competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to
the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the witness in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the
witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be
given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization
must be supported by two character witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the
Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent
that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are
not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia,
Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner
has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, 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. While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible
requires something more than just being competent and, therefore, a witness in addition to being competent under Articles
820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and
one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show
that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since
one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano
teacher to a grandchild of the testatrix. But the relation of employer and employee much less the humble social or
financial position of a person do not disqualify him to be a competent testamentary witness. (Molo-Pekson and PerezNable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article
805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article
820 which says "may be a witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities
that the word "credible" insofar as witnesses to a will are concerned simply means "competent." Thus, in the case of
Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will must be clearly
and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those
who testify to facts from or upon hearsay." (emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of
the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and
not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to
the beneficiary in a will, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be
credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of
which we may cite:
"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime, or other cause. Historical
Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95
A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).

"Expression 'credible witness' in relation to attestation of wills means 'competent witness'; that is, one competent
under the law to testify to fact of execution of will. Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde,
Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses
means competent; witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to
the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and
not of the time it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competent witnesses that is, such persons
as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect
of the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42."
(Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute,
that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from
the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio
del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a
witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial
courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony
to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words,
the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate
of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible witnesses", that is, that they have a
good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the
findings of fact of the respondent court in finding that the preparation and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the
will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in
holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed,
and in holding that the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid down that the findings of fact of
the appellate court are binding and controlling which We cannot review, subject to certain exceptions which We will
consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and
supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of
Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution of the will and
that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was
unexpected as there was no prior appointment with him, but he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the
appellate court is amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of the
day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to witness the
making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to
proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office, which
testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained
residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942
was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued
also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and one day, respectively, before the execution
of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that
they would be witnesses to the execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned
by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from
the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to
Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and
Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the will was
executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her
that if she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor
to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that
he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by
Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit "F", which the petitioner assails
as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the
names of the witnesses and their respective residence certificates) immediately upon their arrival in the law office by
Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he
received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the
respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given immediately to Atty.
Paraiso and that no such list was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on
a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such
data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses
on April 15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And
since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is
a public document executed and attested through the intervention of the notary public and as such public document is
evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs.
Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were
all present in the same occasion merits Our approval because this conclusion is supported and borne out by the evidence
found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.",
"date issued" and "place issued" the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on
February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the names, residence tax certificate numbers,
dates and places of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty.
Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the
appointment of the appellant Santiago as executrix of the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket
number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon
petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or
document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old
and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few
weeks after the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of
the respondent appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our
power to revise and review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix
dictated her will without any note or memorandum appears to be fully supported by the following facts or evidence
appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree with the respondent Court that the
testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and documentary is,
according to the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on
April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of
the appellate court is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically
present when the will was signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of the
appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia
could not have been present to witness the will on that day is purely conjectural. Witness Orobia did not admit having
given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is highly probable that even if
April 15, 1961 were a Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to
preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on
April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the
will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment
overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that
she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because it
preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very purpose
of the attestation clause which is made for the purpose of preserving in permanent form, a record of the facts attending
the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may
still be proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave
undue importance to the picture-takings as proof that the will was improperly executed, We agree with the reasoning of
the respondent court that: "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary to what the
other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at
worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed because what matters here is not the
photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya."
Further, the respondent Court correctly held: "The trial court gave undue importance to the picture-takings, jumping

therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria
Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their identification
of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross
examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly
unnecessary if not pointless. What was important was that the will was duly executed and witnessed on the first occasion
on April 15, 1961," and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do
not require picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective
testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions,
evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter
used by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the type in which the will
was typewritten but which was identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are
indeed unimportant details which could have been affected by the lapse of time and the treachery of human memory such
that by themselves would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs.
dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person will be identical and coinciding
with each other with regard to details of an incident and that witnesses are not expected to remember all details. Human
experience teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long series
of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all
those who witness an incident are impressed in like manner, it is but natural that in relating their impressions, they should
not agree in the minor details; hence the contradiction in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the
respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence presented
in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of
the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts
particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending
witnesses lies peculiarly within the province of trial courts and generally, the appellate court should not interfere with the
same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the
facts and circumstances established in the record. Whereas the appellate court said that "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial
court's conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not
have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a
conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed and that there is nothing in the entire record to support
the conclusion of the court a quo that the will-signing occasion was a mere coincidence and that Isabel Gabriel made an
appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to
reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts. LLpr
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals
is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that
among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or
conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer
proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that
on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel
to dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their
correctness; the lawyer then typed the will and after finishing the document, he read it to her and she told him that it was
alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde
Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the document in
the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the
end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel
Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the
bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel
Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier
advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did
not know beforehand the identities of the three attesting witnesses until the latter showed up at his law office with Isabel
Gabriel on April 15, 1961. Atty. Paraiso's claim-which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in
question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have
dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it
was incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision
under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any

note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or
document. This fact jibes with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was
of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel
Gabriel's wish to be interred according to Catholic rites; the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago
Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee; the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme
situations in which judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when
the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions
enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We
discern no misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the wellestablished rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not
be disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or
reservation. The above holding simply synthesizes the resolutions we have heretofore made in respect to petitioner's
previous assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court
acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call
for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record
is unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on
April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in
the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after
finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at
the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn
out good. The lawyer told her that this cannot be done because the will was already signed but Isabel Gabriel insisted that
a picture be taken, so a simulated signing was performed during which incident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three
instrumental witnesses who constitute the best evidence of the will-making have testified in favor of the probate of the will.
So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All
of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses
and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule
that the Supreme Court cannot review and revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs
against the petitioner.
SO ORDERED.

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SECOND DIVISION
[G.R. No. 21755. December 29, 1924.]
In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitioner-appellee, vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.

DECISION
ROMUALDEZ, J p:
This is a proceeding for the probate of the will of the deceased Antonio Mojal, instituted by his surviving spouse,
Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece, respectively, of the
deceased.
The Court of first Instance of Albay, which tried the case, overruled the objections to the will, and ordered the
probate thereof, holding that the document in controversy was the last will and testament of Antonio Mojal, executed in
accordance with law. From this judgment the opponents appeal, assigning error to the decree of the court allowing the will
to probate and overruling their opposition.
The will in question, Exhibit A, is composed of four sheets with written matter on only one side of each, that is,
four pages written on four sheets. The four sides or pages containing written matter are paged ""Pag. 1," Pag. 2," "Pag.
3,", "Pag. 4," successively. Each of the first two sides or pates, which was used, was signed by the testator and the three
witnesses on the margin, left side of the reader. On the third page actually used, the signatures of the three witnesses
appear also on the margin, left side of the reader, but the signature of the testator is not on the margin, but about the
middle of the page, at the end of the will and before the attestation clause. On the fourth page, the signatures of the
witnesses do not appear on the margin, but at the bottom of the attestation clause, it being the signature of the testator
that is on the margin, left side of the reader.
The defects attributed to the will are:
(a)
The fact of not having been signed by the testator and the witnesses on each and every sheet on the left
margin; (b) the fact of the sheets of the document not being paged with letters; (c) the fact that the attestation clause does
not state the number of sheets or pages actually used of the will; and (d) the fact that the testator does not appear to have
signed all the sheets in the presence of the three witnesses, and the latter to have attested and signed all the sheets in
the presence of the testator and of each other.
As to the signatures on the margin, it is true, as above stated, that the third page actually used was signed by the
testator, not on the left margin, as it was by the witnesses, but about the middle of the page and at the end of the will; and
that the fourth page was signed by the witnesses, not on the left margin, as it was by the testator, but about the middles of
the page and at the end of the attestation clause.
In the respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), is applicable,
wherein the will in question was signed by the testator and the witnesses, not on the left, but on the right, margin. The rule
laid down in that case is that the document contained the necessary signatures on each page, whereby each page if the
will was authenticated and safeguarded against any possible alteration. In that case, the validity of the will was sustained,
and consequently it was allowed to probate.
Applying that doctrine to the instant case, we hold that, as each and every page used of the will bears the
signatures of the testator and the witnesses, the fact that said signatures do not all appear on the left margin of each page
does not detract from the validity of the will.
Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not paged with
letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held that paging with Arabic numerals
and not with letter, as in the case before us, is within the spirit of the law and is just as valid as paging with letters.
As to the proposition that the attestation clause does not state the number of sheets or pages of the will, which is
the third defect assigned, it must be noted that the last paragraph of the will here in question and the attestation clause,
coming next to it, are of the following tenor:
"In witness whereof, I set my hand unto this will here in the town of Camalig, Albay, Philippine Islands, this 26th
day of November, nineteen hundred and eighteen, composed of four sheets, including the next:
"ANTONIO MOJAL
"(Signed and declared by the testator Don Antonio Mojal to be his last will and testament in the presence of each
of us, and at the request of said testator Don Antonio Mojal, we signed this will in the presence of each other and the
testator.)
"PEDRO CARO
"SILVERIO MORCO
"ZOILO MASINAS"
As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the case of Uy
Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must state the number of sheets or pages
composing the will; but when, as in the case before us, such fact, while it is not stated in the attestation clause, appears at
the end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the will, then there can be
no doubt that it complies with the intention of the law that the number of sheets of which the will is composed be shown by
the document itself, to prevent the number of the sheets of the will from being unduly increased or decreased.
With regard to the last defect point out, namely, that the testator does not appear to have signed on all the sheets
of the will in the presence of the three witnesses, and the latter to have attested and signed in all the sheets in the
presence of the testator and of each other, it must be noted that in the attestation clause above set out it is said that the
testator signed the will "in the presence of each of the witnesses" and the latter signed "in the presence of each other and
of the testator." So that, as to whether the testator and the attesting witnesses saw each other sign the will, such a
requirement was clearly and sufficiently complied with. What is not stated in this clause is whether the testator and the
witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the will is one which cannot be proven
by the mere exhibition the will unless it is stated in the document. And this fact is expressly stated in the attestation clause
now before us. But the fact of the testator and the witnesses having signed all the sheets of the will may be proven by the
mere examination of the document, although it does not say anything about this, and if that is the fact, as it is the instant
case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnesses signed each and every page of the
will is proven by the mere examination of the signatures in the will, the omission to expressly state such evident fact does
not invalidate the will nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. So ordered.

FIRST DIVISION
[G.R. No. 17857. June 12, 1922.]
In re will of Josefa Zalamea y Abella, deceased. PEDRO UNSON, petitioner-appellee, vs. ANTONIO ABELLA ET
AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevara and Carlos Ledesma for appellee
DECISION

VILLAMOR, J p:
On July 19, 1918, Dona Josefa Zalamea y Abella, single, 60 years old, who was residing in the municipality of
Pagsanjan, Province of Laguna, executed her last will and testament with an attached inventory of her properties, Exhibits
A and A-1, in the presence of three witnesses, who signed with her all the pages of said documents. The testatrix died on
the 6th of January, 1921, and, as the record shows, the executor appointed in the will, Pedro Unson, filed in the Court of
First Instance of Laguna on the 19th of January of the same year an application for the probate of the will and the
issuance of the proper letters of administration in his favor.
To said application an opposition was presented by Antonio Abella, Ignacia Abella, Avicencia Abella, and Santiago
Vito, alleging that the supposed will of the deceased Zalamea was not executed in conformity with the provisions of the
law, inasmuch as it was not paged correlatively in letters; nor was there any attestation clause in it, nor was it signed by
the testatrix and the witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition of the contestants, and ordered the probate of
the will, Exhibit A, and the inventory, Exhibit A-1, holding that both documents contained the true and last will of the
deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed, and in their brief they assign three errors,
which, in their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court below is its finding to the effect that Exhibit A,
said to be the will of the deceased Josefa Zalamea, was executed with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support of the first assignment of error tend to impeach the
credibility of the witnesses for the proponent, specially that of Eugenio Zalamea. We have made a carefully examination of
the evidence, but have not found anything that would justify us in disturbing the finding of the court a quo. The attesting
witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly testify that together with the other witness to the will, Pedro de
Jesus, they did sign each and every page of the will and of the inventory in the presence of each other and of the testatrix,
as the latter did likewise sign all the pages of the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the will was not signed by the testatrix, nor by the
witnesses on the day of the execution of the will, that is, on the 19th of July, 1918, basing their contention on the testimony
of Aurelio Palileo, who says that on one occasion Gonzalo Abaya told him that one of the pages of the will had not been
signed by the witnesses, nor by the testatrix on the day of its execution. Palileo's testimony is entirely contradicted by
Gonzalo Abaya not only in the direct, but in the rebuttal, evidence as well. To our mind, Palileo's testimony cannot prevail
over that of the attesting witnesses, Gonzalo Abaya and Eugenio Zalamea. The appellants impeach the credibility of
Eugenio Zalamea, for having made a sworn declaration before the justice of the peace of Santa Cruz, Laguna, before the
trial of this case, to the effect that he was really one of the witnesses to the will in question, which fact was corroborated
by himself at the trial. The appellants take Zalamea's testimony in connection with the dismissal of a criminal case against
a nephew of his, in whose success he was interested, and infer from this fact the partiality of his testimony. We deem this
allegation of little importance to impeach the credibility of the witness Zalamea, especially because his testimony is
corroborated by the other attesting witness, Gonzalo Abaya, and by attorney Luis Abaya, who had prepared the testament
at the instance of the testatrix. The foregoing is sufficient for us to conclude that the first assignment of error made by the
appellant is groundless.
The appellants contend that the court below erred in admitting the will to probate notwithstanding the omission of
the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the court that they had necessarily to omit the
testimony of Pedro de Jesus, one of the persons who appear to have witnessed the execution of the will, for there were
reasonable grounds to believe that said witness was openly hostile to the proponent, inasmuch as since the
announcement of the trial of the petition for the probate of the will, said witness has been in frequent communication with
the contestants and their attorney, and has refused to hold any conference with the attorneys for the proponent. In reply to
this, the attorney for the contestants, said to the court, "without discussing for the present whether or not in view of those
facts (the facts mentioned by the attorneys for the petitioner), in the hypothesis that the same are proven, they are
relieved from producing that witness, for while it is a matter not decided, it is a recognized rule that the fact that a witness
is hostile does not justify a party to omit his testimony; without discussing this, I say, I move that said statement be
stricken out, and if the proponent wants these facts to stand in the record, let him prove them." The court a quo ruled,
saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take any exception.
In the case of Avera vs. Garcia and Rodriquez (42 Phil., 145), recently decided by this court, in deciding the
question whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness,
without producing or accounting for the absence of the other two, it was said; while it is undoubtedly true that an
uncontested will may be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs.
Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that
when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the
court.
"In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been
pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was
entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith
that probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon
finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the
trial in order that he might produce all the attesting witnesses.
"Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply
any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned,
this court would probably be compelled to reverse this case on the ground that the execution of the will had not been
proved by a sufficient number of attesting witnesses.
"It appears, however, that this point was not raised by the appellant in the lower court either upon the submission
of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well
taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided by

the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of
practice should not be observed by us.
(Estate of McCarty, 58 Cal., 335, 337.)
"There are at least two reasons why the appellate tribunal are disinclined to permit certain questions to be raised
for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance
upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point,
unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with
the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance
is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think,
decisive.
"In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule
that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have escaped that attention of all persons
concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct
decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought
properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question upon
appeal; and this is the more proper when the question relates to a defect which might have been cured in the Court of
First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the
lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have
been its duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to
the will might be brought into court. But in stead of thus calling the error to the attention of the court and his adversary, the
point is first raised by the appellant in this court. We hold that this is too late.
"Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we
now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a
republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been
previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both
parties in that case were therefore fully apprised that the question of the number of witnesses necessary to prove the will
was in issue in the lower court."
In the case at bar, we do not think this question properly to have been raised at the trial, but in the memorandum
submitted by the attorney for the appellants to the trial court, he contended that the will could not be admitted to probate
because one of the witnesses to the will was not produced, and that the voluntary non-production of this witness raises a
presumption against the pretension of the proponent. The trial court found that the evidence introduced by the proponent,.
consisting of the testimony of the two attesting witnesses and the other witness who was present at the execution, and
had charge of the preparation of the will and the inventory, Exhibits A and A-1, was sufficient. As announced in Cabang vs.
Delfinado, supra, the general rule is that, where opposition is made to the probate of a will, the attesting witnesses must
be produced. But there are exceptions to this rule, for instance, when a witness is dead, or cannot be served with process
of the court, or his reputation for truth has been questioned or he appears hostile to the cause of the proponent. In such
cases, the will may be admitted to probate without the testimony of said witness, if, upon the other proofs adduced in the
case, the court is satisfied that the will has been duly executed. Wherefore, we find that the non-production of the attesting
witness, Pedro de Jesus, as accounted for by the attorney for the proponent at the trial, does not render void the decree
of the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to the application, this would not by itself
have change the result reached by the court a quo, for section 632 of the Code of Civil Procedure provides that a will can
be admitted to probate, notwithstanding that one or more witnesses do not remember having attested it, provided the
court is satisfied upon the evidence adduced that the will has been executed and signed in the manner prescribed by the
law.
The last error assigned by the appellants is made to consist in the probate of the inventory, Exhibit A-1, despite
the fact that this exhibit has no attestation clause in it, and its paging is made in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory, Exhibit A-1, and at the bottom of said will, the
testatrix Josefa Zalamea says:
"In witness whereof, I sign this will composed of ten folios including the page containing the signatures and the
attestation of the witnesses; I have likewise signed the inventory attached to this will composed of ten folios in the
presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of Pagsanjan, Laguna,
Philippine Islands, this 19th of July, 1918."
And the attestation clause is as follows:
"The foregoing will composed of ten folios including this one whereunto we have affixed our signatures, as well as
the inventory of the properties of Dona Josefa Zalamea y Abella, was read to Dona Josefa Zalamea y Abella, and the
latter affixed her name to name the last, and each and every page of this will and inventory composed of ten folios in our
presence; and she declared this to be her last will and testament and at her request we have affixed hereunto our
respective signatures in her presence and in the presence of each other as witnesses to the will and the inventory this
19th of July, 1918, at Pagsanjan, Laguna, P. I.
"GONZALO ABAYA,
"EUGENIO ZALAMEA,
"PEDRO DE JESUS."
In view of the fact that the inventory is referred to in the will as an integral part of it, we find that the foregoing
attestation clause is in compliance with section 1 of Act No. 2645, which requires this solemnity for the validity of a will,
and makes unnecessary any other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we adhere to the doctrine announced in the
case of Aldaba vs. Roque (p. 378, ante), recently decided by this court. In that case the validity of the will was assailed on
the ground that its folios were paged with the letters A, B, C, etc., instead of with he letters "one," "two," "three," etc. It was
held that this way of numbering the pages of a will is in compliance with the spirit of the law, inasmuch as either one of
these methods indicates the correlation of the pages and serves to prevent the abstraction of any of them. In the course of
the decision, we said: "It might be said that the object of the law in requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that since all the pages of the testament are signed at the margin by the

testatrix and the witnesses, the difficulty of forging the signatures in either case remains the same. In other words the
more or less degree of facility to imitate the writing of the letters A, B, C, etc., does not make for the easiness to forge the
signatures. And as in the present case there exists the guaranty of the authenticity of the testament, consisting in the
signatures on the left margins of the testament and the paging thereof as declared in the attestation clause, the holding of
this court in Abangan vs. Abangan (40 Phil., 476), might as well be repeated:
"'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. Therefore the laws on this 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 last will, must be disregarded.'
"In that case the testament was written on one page, and the attestation clause on another. Neither one of these
pages was numbered in any way, and it was held: 'In a will consisting of two sheets the first of which contains all the
testamentary dispositions and is signed at the bottom by the testator and three witnesses and the second contains only
the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be
further signed on their margins by the testator and the witnesses, or be paged.'
"This means that, according to the particular case, the omission of paging does not necessarily render the
testament invalid.
"The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if
the paging should be placed in the lower part, would the testament be void for this sole reason? We believe not. The law
also provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if
they should sign on the right margin, would this fact also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phil., 145):
"'It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the general doctrine is to the effect that all statutory requirements
as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore
decided by this court.
"'Still some details at times creep into legislative enactments which are so trivial that it would be absurd to
suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the
signatures of the testator and witnesses shall be written on the left margin of each page rather than on the right margin
seems to be of this character. So far as concerns the authentication of the will, and of every part thereof, it can make
no possible difference whether the names appear on the left or on the right margin, provided they are on one or the other.
In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared a will void which
was totally lacking in the signatures required to be written on its several pages; and in the case of Re Estate of Saguinsin
(41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf
(folio), but not in the margin of each page containing written matter.'
"We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal
object is to give the correlation of the pages, we hold that this object may be attained by writing one, two, three, etc., as
well as by writing A, B, C, etc."
We see no reason why the same rule should not be applied where the paging is in Arabic numerals, instead of in
letters, as in the inventory in question. So that, adhering to the view taken by this court in the case of Abangan vs.
Abangan, and followed in Aldaba vs. Roque, with regard to the appreciation of the solemnities of a will, we find that the
judgment appealed from should be, as is hereby, affirmed with the costs against the appellant. So ordered.

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EN BANC
[G.R. No. 15025. March 15, 1920.]
In the matter of the estate of REMIGIA SAGUINSIN, deceased. ARCADIO DEL ROSARIO, applicant-appellant,
JOSE A. DEL PRADO, ET AL., legatees-appellants, vs. RUFINA SAGUINSIN, opponent-appellee.
Fernando Manikis and Gibbs, McDonough & Johnson for applicant and appellant.
No appearance for legatees and appellants.
Claro M. Recto for appellee.

DECISION
ARELLANO, C.J p:
There was presented in the Court of First Instance of the city of Manila for allowance an instrument which the
petitioner calls the will of Remigia Saguinsin. It is a manuscript signed by the alleged testatrix and three witnesses on
October 3, 1918, the conclusion of which says: "I, the testatrix, sign in the presence of the witnesses this will written by D.
Lino Mendoza at my request and under my direction." (Yo, la testadora, firmo en presencia de los testigos este
testamento que ha escrito D. Lino Mendoza a mi ruego y bajo mi direccion.) Then follows a signature and then these
expressions: "The testatrix signed in our presence and each of us signed in the presence of the others." (La testadora ha
firmado en nuestra presencia y cada uno de nosotros en presencia de los demas.) "Witness who wrote this will at the
request and under the free and voluntary personal direction of the testatrix herself." (Testigo que escribio este testamento
a ruego y bajo la libre y voluntaria direccion personal de la misma testadora.) (Sgd.) Lino Mendoza "Attesting
witnesses." (Testigos del testamento.) Then come three signatures.
These three signatures together with that of the alleged testatrix are written also on the left margin of the first
page or folio and on the third page or second folio, but not on the second page or reverse side of the first page where, as
is seen, the manuscript is continued, the second folio not containing anything but the date and the end of the manuscript.
Under these conditions the instrument was impugned by a sister of the alleged testatrix and after the taking of the
declaration of the authors of the signatures which appear three times and in different parts of the manuscript, the court
declared that the document attached to the record could not be allowed as a will.
Certain persons who allege themselves to be legatees appealed jointly with the lawyer for the petitioner.
And upon considering the case on appeal, this court decides:
That, in conformity with Act No. 2645, amendatory to section 618 of the Code of Civil Procedure, the concluding
part of the will does not express what that law, under pain of nullity, requires. Section 618, as amended, says:
"The attestation shall state the number of sheets or pages used upon which the will is written . . .." None of these
requirements appear in the attesting clause at the end of the document presented. The second page, i. e., what is written
on the reverse side of the first, engenders the doubt whether what is written thereon was ordered written by the alleged
testatrix or was subsequently added by the same hand that drew the first page and the date that appears on the third.
With this non-fulfillment alone of Act No. 2645 it is impossible to allow the so-called will which violates said law.
That besides this violation there is another as evident as the preceding. Said Act No. 2645 provides: "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, on the left margin, and said pages shall be numbered correlatively in letters placed on the
upper part of each sheet." The English text differs from the Spanish text: the former says only pages (paginas) while the
latter puts (hojas). "Hoja," according to the Diccionario de la Academia, "is with respect to books or notebooks folio."
According to the same dictionary "pagina (page) is each one of the two faces or planes of the leaf of a book or notebook:
that which is written or printed on each page, for example I have read only two pages of this book." Two pages constitute
one leaf. One page represents only one-half of one leaf. The English text requires that the signature which guarantees the
genuineness of the testament shall be placed on the left hand margin of each page and that each page should be
numbered by letter in the upper part this requirement is entirely lacking on the second page that is, on the reverse side of
the first. According to the old method of paging "folio 1 1/2 y su vto." that is, first folio and the reverse side, should have
been stated, and the second page would then have been included in the citation. By ;the failure to comply with this,
requisite the law has been obviously violated. In the English text the word "pages" does not leave any room for doubt and
it is invariably used in the text of the law, whereas in the Spanish text, "hoja" and "pagina" are used indifferently as may be
seen in the following part which says: "El atestiguamiento hara constar el numero de hojas o paginas utiles en que esta
extendido el testamento." This failure to comply with the law also vitiates the will and invalidates it, as the second page is
lacking in authenticity.
This is a defect so radical that there is no way by which what is written on the reverse side of the first folio may be
held valid. It is possible that this document consists of only the two folios numbered 1 and 2, and that on the reverse side
of number 1 nothing may have been written upon the order of the testatrix, the testament ending at the foot of the first folio
with the legacy "To my nephew Catalino Ignacio, P200" (A mi sobrino Catalino Ignacio doscientos pesos) and from that
part then immediately follows folio No. 2 "Manila a tres de Octubre de mil novecientos diez y ocho. Yo la testadora
firmo en presencia etc." (Manila, October 3, 1918. I, the testatrix, sign in the presence of etc.) There is nothing which
guarantees all the contents of page 2. The margin of this page is absolutely blank. There is nothing which gives the
assurance that the testatrix ordered the insertion of all the contents of page 2. It may very well be that it was subsequently
added thereby substituting the will of the testatrix, a result for the prevention of which this manner of authenticity by
affixing the signature on each page and not merely on each folio was provided for by law. This defect is radical and totally
vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or
leaves; three pages having been written, the authenticity of all three of them should be guaranteed with the signatures of
the alleged testatrix and her witnesses. The English text which requires the signing of pages and not merely leaves or
folios should prevail. It is so provided in section 15 of the Administrative Code (Act No. 2711).
The judgment appealed from is affirmed, with costs of this instance against the appellant.

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SECOND DIVISION
[G.R. No. 15566. September 14, 1921.]
EUTIQUIA AVERA, petitioner-appellee, vs. MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the
minors Cesar Garcia and Jose Garcia, objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
DECISION

STREET, J p:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban Garcia,
contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia
and Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting
witnesses who testified with details not necessary to be here specified that the will was executed with all necessary
external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the
witness was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses
were not introduced, nor was their absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to
show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable
to comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the
testator at the time of the making of the will was of sound mind and disposing memory and that the will had been properly
executed. He accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will, and the only errors here
assigned have reference to the two following points, namely, first, whether a will can be admitted to probate, where
opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the
other two; and, secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the
testator and of the three attesting witnesses are written on the right margin of each page of the will instead of the left
margin.
Upon the first point, while it is undoubtedly true that an uncontested will may be proved by the testimony of only
one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an
elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting
witnesses must be examined, if alive and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been
pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was
entered until the very day set for the hearing; and it is probable that the attorney for the proponent, believing in good faith
that probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon
finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the
trial in order that he might produce all the attesting witnesses.
Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply
any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned,
this court would probably be compelled to reverse this case on the ground that the execution of the will had not been
proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower court either upon the submission
of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is
insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well
taken, and the first assignment of error must be declared not to be well taken. This exact question has been decided by
the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of
practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to permit certain questions to be raised
for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance
upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point,
unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with
the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance
is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think,
decisive.
In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule
that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons
concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct
decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought
properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question upon
appeal; and this is the more proper when the question relates a defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower
court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been
its duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will
might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is
first raised by the appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we
now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a
republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been
previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both
parties in that case were therefore fully apprised at the question of the number of witnesses necessary to prove the will
was in issue in the lower court.
The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as amended
by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental
witnesses should be written on the left margin of each page, as required in said Act, and not upon the right margin, as in
the will now before us; and upon this we are of the opinion that the will in question is valid. It is true that the statute says
that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from cases heretofore decided by this court.

Still some details at times creep into legislative enactments which are so trivial that it would be absurd to suppose
that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of
the testator and witnesses shall be written on the left margin of each page rather than on the right margin seems to
be of this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided they are on one or the other. In Caraig
vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared a will void which was totally
lacking in the signatures required to be written on its several pages; and in the case of Re estate of Saguinsin (41 Phil.,
875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf (folio), but not
in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page, and the only point of deviation
from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of
signing here adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly
the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry
could be exhausted without discovering the slightest difference between the consequences of affixing the signatures in
one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate
pages, were signed and not each written page; for as observed in that case by our late lamented Chief Justice, it was
possible that in the will as there originally executed by the testatrix only the alternative pages had been used, leaving
blanks on the reverse sides, which conceivably might have been filled in subsequently.
The controlling considerations on the point now before us were well stated in Re will of Abangan (40 Phil., 476,
479), where the court, speaking through Mr. Justice Avancea, in a case where the signatures were placed at the bottom
of the page and not in the margin, said:
"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. 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 last will, must be disregarded."
In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon
the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment appealed from will be affirmed. It is
so ordered, with costs against the appellants.

EN BANC
G.R. No. L-14322

February 25, 1960

In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased,

vs.
DIOSDADA ALBERASTINE, petitioner-appellant.
Agustin Y. Kintanar for appellant.
BAUTISTA ANGELO, J.:
This concerns the probate of a document which purports to be the last will and testament of one Petronila Tampoy. After
the petition was published in accordance with law and petitioner had presented oral and documentaryevidence, the trial
court denied the petition on the ground that the left hand margin of the first of the will does not bear the thumbmark of the
testatrix. Petitioner appealed from this ruling but the Court of Appeals certified the case to us because it involves purely a
question of law.
The facts of this case as found by the trial court as follows:
De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a Bonigfacio Mioza que la leyera el
testamento Exhibito A y la expicara su contenido en su casa en al calle San Miguel, del municipio de Argao,
provincia de Cebu, en 19 de noviember de 1939, y lasi lo hizo Bonifacio Mioza en presencia de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Pea y Simeon Omboy, y despues de conformarse con el
contendido del testamento, ella rogo a Bonifacio Mioza, que escribiera su nombre al pie del testamento, en la
pagina segunda, y asi lo hizo Bonifacio Mioza, y despues ella estampo su marca digital entra su nombre y
apelido en presencia de todos y cada uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Pea y Simeon Omboy y de Bonifacio Mioza, y despues, Bonifacio Mioza firmo tambien al pie del todos y
cada uno de lo tres testigos arriba nombrados. La testadora asi como Bonifacio Mioza parte de la primera
pagina del testamento qeu se halla compuesto de dos paginas. Todos y cada uno de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Pea y Simeon Omboy, firmaron al pie de la clausula de
atestiguamiento que esta escrita en la pagina segunda del testamento y en la margen izquierda de la misma
pagina 2 y de la pagina primera en presencia de la testadora, de Bonifacio Mioza, del abogado Kintanar y de
todos y cada uno de ellos. El testamento fue otorgado por la testadora libre y expontaneament, sin haber sido
amenazada, forzada o intimidada, y sin haberse ejercido sobre ella influencia indebida, estando la misma en
pleno uso de sus facultades mentales y disfrutando de buena salud. La testadore fallecio en su case en Argao en
22 de febrero de 1957 (Vease certificado de defuncion Exhibito B). La heredera instituida en el testamento,
Carmen Alberastine, murio dos semanas despues que la testadora, o sea en 7 de Marzo de 1957, dejando a su
madre, la solicitante Diosdada Alberastine.
The above facts are not controverted, there being no opposition to the probate of the will. However, the trial court denied
the petition on the ground that the first page of the will does not bear the thumbmark of the testatrix. Petitioner now prays
that this ruling be set aside for the reason that, although the first page of the will does not bear the thumbmark of the
testatrix, the same however expresses her true intention to givethe property to her whose claims remains undisputed. She
wishes to emphasize that no one has filed any to the opposition to the probate of the will and that while the first page does
not bear the thumbmark of the testatrix, the second however bears her thumbmark and both pages were signed by the
three testimonial witnesses. Moreover, despite the fact that the petition for probate is unoppossed, the three testimonial
witnesses testified and manifested to the court that the document expresses the true and voluntary will of the deceased.
This contention cannot be sustained as it runs counter to the express provision of the law. Thus, Section 618 of Act 190,
as amended, requires that the testator sign the will and each and every page thereof in the presence of the witnesses,
and that the latter sign the will and each and every page thereof in the presence of the testator and of each other, which
requirement should be expressed in the attestation clause. This requirement is mandatory, for failure to comply with it is
fatal to the validity of the will (Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes prescribing the
formalities to be observed in the execution of wills are very strictly construed. As stated in 40 Cyc., at page 1097, 'A will
must be executed in accordance with the statutory requirements; otherwise it is entirely void.' All these requirements stand
as of equal importance and must be observed, and courts cannot supply the defective execution of a will. No power or
discretion is vested in them, either to superadd other conditions or dispence with those enumerated in the statutes" (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Sao vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil.,
30; Quinto vs. Morata, 54 Phil., 481).
Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the testatrix on its first page
even if it bears the signature of the three instrumental witnesses, we cannot escape the conclusion that the same fails to
comply with the law and therefore, cannot be admitted to probate.
Wherefore, the order appealed from is affirmed, without pronouncement as to costs.
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FIRST DIVISION
[G.R. No. 17304. May 22, 1922.]
In re will of Maria Roque y Paraiso, deceased. CEFERINO ALDABA, petitioner-appellee, vs. LUDOVICO ROQUE,
opponent-appellant.
Lucero & Tengco for appellant.
Vicente Platon for appellee.
DECISION
VILLAMOR, J p:

It appears from the record of the case that on July 9 , 1918, Maria Roque y Paraiso, the window of Bruno
Valenzuela, resident of the barrio of Mambog, municipality of Malolos. Province of Bulacan, executed her last will and
testament in the Tagalog dialect with the help of Vicente Platon and in the presence of three witnesses who signed the
attestation clause and each of the four pages of the testament. Maria Roque died on December 3, 1919, and when her
will was filed in court for probate, it was contested by Ludovico Roque on the ground that it had not been prepared nor
executed in conformity with the requirements and solemnities prescribed by law.
After due proceedings had been had, the Court of First Instance of Bulacan by its decision rendered on February
27th of the following year, pronounced the testament in question valid, and ordered its probate, appointing Ceferino
Aldaba as the administrator of the estate.
The errors assigned by the appellant are two, to wit: "That each and every folio of the said testament is not paged
correlatively in letters," and "that the said will lacks the attestation clause required by law."
We have examined document Exhibit 4 which is the will in question and we find at the end thereof the following in
Tagalog which translated into English reads:
"This document expresses my last and spontaneous will, and is my last will and testament, which was drawn by
the lawyer, Don Vicente Platon, at my direction, and everything contained in this testament has been ordained and
directed by me to said Vicente Platon in order that it might embodied in this testament, and after this testament has been
drawn up, I directed him to read it so that I might hear all its contents, and I have heard and understood all the contents of
this document which is my last will wherefore, and not knowing how to write, I have requested Don Vicente Platon to write
and sign my name in my stead hereon; I declare that this testament is composed of four sheets, actually used, that the
sheets are paged with the letters A, B, C, and D, and above my name I have placed the thumb mark of my right hand in
the presence of the subscribing witnesses, and that all the witnesses have signed in my presence and of each other here
at Malolos, Bulacan, this 9th day of the month of July, 1918; and I also declare that at my request Don Vicente Platon has
written my name on the left margin of all the pages of this testament, in the presence of the witnesses, and all the
witnesses have also signed all the pages of this testament on the left margin in my presence and that of each other.
"X (Her thumb mark)
"MARIA ROQUE Y PARAISO,
"Per VICENTE PLATON.
"REGINO E. MENDOZA,
"Witness.
"IGNACIO ANIAG,
"Witness.
"CEFERINO ALDABA,
"Witness."
In reality, it appears that it is the testatrix who makes the declaration about the points contained in the above
described paragraph; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of
the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the
requirements of section 1 of Act. No. 2645 which provides 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 the pages thereof in the
presence of the testator and of each other."
In regard to the other assignment of error, to wit, that each of the folios of the said testament is not paged
correlatively in letters "one," "two", "three", etc., but only with the letters A, B, C, etc., we are of the opinion that this
method of indicating the paging of the testament is a compliance with the spirit of the law, since either one of the two ways
above-mentioned indicates the correlation of the pages and serves to prevent the loss of any of them. It might be said that
the object of the law in requiring that the paging be made in letters is to make falsification more difficult, but it should be
noted that since all the pages of the testament are signed at the margin by the testatrix and the witnesses, the difficulty of
forging the signatures in either case remains the same. In other words the more or less degree of facility to imitate the
writing of the letters A, B, C, etc., does not make for the easiness to forge the signature. And as in the present case there
exists the guaranty of the authenticity of testament, consisting in the signatures on the left margins of the testament and
the paging thereof as declared in the attestation clause, the holding of this court in Abangan vs. Abangan (40 Phil., 476),
might as well be repeated:
"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. 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 last will, must be disregarded."
In that case the testament was written on one page, and the attention clause on another. Neither one of these
pages was numbered in any way; and it was held:
"In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three clause and is signed also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by that both sheets be further signed on their margins by the testator and
the witnesses, or be paged."
This means that, according to the particular case, the omission of paging does not necessarily render the
testament invalid.
The law provides that the numbering of the pages should be in letters placed on the upper part of the sheet, but if
the paging should be placed in the lower part, would the testament be avoid for this sole reason? We believe not. The law
also provides that the testator and the witnesses must sign the left margin of each of the sheets of the testament; but if
they should sign on the right margin, would this fact also annual the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phil., 145):
"It is true that the statute says that the testator and the instrumental witnesses shall their names on the left margin
of each and every page: and it is undeniable that the general doctrine, is to the effect that all statutory requirements as to
the execution wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this
court.

"Still some details at times creep into legislative enactments which are so trivial that it would be absurd to
suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the
importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left
margin of each page rather than on the right margin seems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the
left or on the right margin, provided they are No. 12558, decided March 23, 1918, not reported), this court declared a will
which was totally lacking in the signatures required to be written on its several pages; and in the case of Re Estate of
Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of
each leaf (folio), but not on the margin of each page containing written matter."
We do not desire to intimate that the numbering in letters is a requisite of no importance. But since its principal
object may be attained by writing "one," "two," "three," etc., as well as by writing A, B, C, etc. Following, therefore, the
view maintained by this court in the case of Abangan vs. Abangan, supra, as regards the appreciation of the solemnities of
a testament, we decide that the judgment appealed from must be, as is hereby, affirmed with costs against the appellant.
So ordered.

SECOND DIVISION
[G.R. No. L-21151. February 25, 1924.]
In re will of Antonio Vergel de Dios, deceased. RAMON J. FERNANDEZ, petitioner-appellant, HERMELO
VERGEL DE DIOS and SEVERINA JAVIER, legatees-appellants, vs. FERNANDO VERGEL DE DIOS ET AL., opponentsappellees.
ROMUALDEZ, J p:
The question in this case is as to the validity of the document Exhibit A as a will, which was propounded by
Ramon J. Fernandez for probate, and contested by Fernando Vergel de Dios and Francisco, Ricardo and Virgilio Rustia,
the Court of First Instance of Manila having denied its probate.

The applicant takes this appeal, assigning error to the action of the lower court in holding the attestation fatally
defective and in not finding Act No. 2645 void.
The facts attributed to the will by the contestants are as follows, to wit:
(a)
It was not sufficiently proven that the testator knew the contents of the will.
(b)
The testator did not sign all the pages of the will.
(c)
He did not request anybody to attest the document as his last will.
(d)
He did not sign it in the presence of any witnesses.
(e)
The witnesses did not sign it in the presence of the testator, or of each other, nor with knowledge on the
part of the testator that they were signing his will.
(f)
The witnesses did not sign the attestation clause before the death of the testator.
(g)
This clause was written after the execution of the dispositive part of the will and was attached to the will
after the death of the testator.
(h)
The signatures of the testator on page 3 of Exhibit A are not authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read the will to the testator, the latter's mind was
perfectly sane and he understood it; that he signed all the pages of the will proper, although he did not sign the page
containing the attestation clause; that while he did not personally call the witnesses, yet the latter were invited by Attorney
Lopez Lizo to act as such in his presence. The law does not require that the testator precisely be the person to request
the witnesses to attest his will. It was also sufficiently established in the record, besides being stated in the attestation
clause, that the testator signed the will in the presence of the three witnesses and that the latter, in turn, signed it in the
presence of the testator and of each other, the testator knowing that the witnesses were signing his will; that the witnesses
signed the attestation clause before the death of the testator; that this clause, with the names of the witnesses in blank,
was prepared before the testator signed the will, and that the sheet containing said clause, just as those of the will proper,
was a loose sheet, and that all the four sheets of which the will Exhibit A was actually composed were kept together and
are the very ones presented in this case; and finally, that the signatures of the testator on page 3 of said exhibit are
authentic.
It thus appearing from the record that there are no such defects as those mentioned by the opponents, and it
having been proven that the testator executed said will in a language known by him and consciously, freely and
spontaneously, it would seem unnecessary to go further, and the matter might be brought to a close right here, by holding
the will in question valid and allowable to probate, were it not for the fact that the trial court and the opponents questioned
the sufficiency and validity of the attestation clause because the sheet on which it is written is not numbered, and it is not
stated there that the testator signed on the margin of each sheet of the will in the presence of the three witnesses, or that
the latter signed it in the presence of the testator and of each other, specially because said attestation clause is not signed
by the testator either at the margin or the bottom thereof.
As to the numbering of the sheet containing the attestation clause, it is true that it does not appear on the upper
part of the sheet, but it does appear in its text, the pertinent part of which is copied hereinafter, with the words, having
reference to the number of sheets of the will, underscored, including the page number of the attestation:
". . . We certify that the foregoing document written in Spanish, a language known by the testator Antonino Vergel
de Dios, consisting of three sheets actually used, correlatively enumerated, besides this sheet . . ."
If, as stated in this clause, the foregoing document consists of three sheets, besides that of the clause itself, which
is in singular, it is clear that such a sheet of the attestation clause is the fourth and that the will, including said sheet, has
four sheets. This description contained in the clause in question constitutes substantial compliance with the requirements
prescribed by the law regarding the paging. So it was held by this Court in the case of Abangan vs. Abangan (40 Phil.,
476), where the sheet containing the attestation, as well as the preceding one, was also not paged. Furthermore, the law,
as we shall see later on, does not require that the sheet containing nothing but the attestation clause, wholly or in part, be
numbered or paged. Consequently this lack of paging on the attestation sheet does not take anything from the validity of
the will.
Turning now to the question whether or not in this clause it is stated the testator signed on the margin of each
sheet of the will, in the presence of the witnesses and the latter in the presence of each other, let us see what is said in
said clause on this point, and to this end its pertinent part is hereinafter transcribed and is as follows:
". . . and he (the testator) signed at the bottom of the aforesaid will in our presence and we at his request did the
same in his presence and in that of each other as witnesses to the will, and lastly, the testator, as well as we, as
witnesses, signed in the same manner on the left margin of each sheet." (Italics ours.)
The underscored phrase "in the same manner" cannot in the instant case mean, and it in fact means
nothing, but that the testator and the witnesses signed on the left margin of each sheet of the will "in the same manner" in
which they signed at the bottom thereof, that is, the testator in the presence of the witnesses and the latter in the
presence of the testator and of each other. This phrase in the same manner cannot, in view of the context of the pertinent
part, refer to another thing, and was used here as a suppletory phrase to include everything and avoid the repetition of a
long and difficult one, such as what is meant by it. The same section 618 of the Code of Civil Procedure, in order to avoid
the repetition of the same long phrase about the testator having signed in the presence of the witnesses and the latter in
the presence of each other, resorts to a similar expression in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from the sheet containing the attestation clause,
this point was already decided in the above cited case of Abangan vs. Abangan, where this court held that:
"The testator's signature is not necessary in the attestation clause because this, as its name implies, appertains
only to the witnesses and not to the testator."
In that case of Abangan vs. Abangan it was held that the signature of the testator is not necessary in the
attestation clause, but the theory is not announced that such a clause is unnecessary to the validity of the will.
For this reason such doctrine does not annul the judgment in the case of Uy Coque vs. Navas L. Sioca (43 Phil.,
405), where in effect the doctrine, among others, was laid down that the attestation clause is necessary to the validity of
the will. One of the points on which greatest stress was laid in that case of Uy Coque is that the requirements of the law
regarding the number of the pages used, the signing of the will and of each of its pages by the testator in the presence of
three witnesses, and the attestation and signing of the will and of each its pages by the testator in the presence of three
witnesses, and the attestation and signing of the will and of each of its pages by the witnesses in the presence of each
other cannot be proven aliunde but by the attestation clause itself which must expressed the compliance of the will with
such requirements. But it was not held in that case of Uy Coque that the signature of the testator was necessary in the

attestation clause, nor was such point discussed there, which was the point at issue in the case of Abangan vs. Abangan,
supra.
The appellees, however, argue that such clause in the case of Abangan vs. Abangan begins at the bottom and on
the same sheet in which the testamentary provisions terminated, that is to say, the will properly speaking. Even then if it is
intended to commit misrepresentation or fraud, which are things that with the requirements of the law for the making and
attesting of wills it is intended to avoid, it is just the same that the clause; as in the case of Abangan vs. Abangan, begins
at the bottom of the will properly speaking, as, like the case before us, it is wholly contained in a separate sheet. The fact
is that this separate sheet, containing the attestation clause wholly or in part, is not signed in any place by the testator in
the case.
Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, contains three paragraphs, of which the
first enumerates in general terms the requirements to be met by a will executed after said Code took effect, to wit, that the
language or dialect in which it is written be known by the testator, that it be signed by the latter or by another person in the
name of the testator by his express direction and in his presence, and that it be attested and signed by three or more
credible witnesses in the presence of the testator and of each other.
These general rules are amplified in the next two paragraphs as to the special requirements for the execution of
the will by the testator and the signing thereof by the witnesses, with which the second paragraph of the section deals,
and as to the attestation clause treated in the third and last paragraph of said section 618.
For this reason the second paragraph of this section 618 says:
"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, on the left margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet."
These are the solemnities that must surround the execution of the will properly speaking, without any reference
whatsoever to the attestation clause not treated in this second paragraph. It is in this second paragraph which deals only
with the will (without including the attestation clause), that the signature or name of the testator and those of the witnesses
are mentioned as necessary on the left margin of each and everyone of the sheets of the will (not of the attestation
clause), as well as the paging of said sheets (of the will, and not of the attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also necessary in the attestation clause? Let us
see the last paragraph of this section 618 of the Code which already deals with the requirements for the attestation
clause. This last paragraph reads thus:
"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."
As may be seen this last paragraph refers to the contents of the text of the attestation, not the requirements or
signatures thereof outside of its text. It does not require that the attestation be signed by the testator or that the page or
sheet containing it be numbered.
From this analysis of our law in force it appears:
First. That the will must have an attestation clause as a complement, without which it cannot be probated and
with which only and not aliunde (Uy Coque vs. Navas L. Sioca, supra) may the requirements to be stated in its text be
proven. The attestation clause must be prepared and signed, as in the instant case, on the same occasion on which the
will is prepared and signed, in such a way that the possibility of fraud, deceit or suppression of the will or the attestation
clause be reduced to a minimum; which possibility always exists, as experience shows, in spite of the many precautions
taken by the legislator to insure the true and free expression of one's last will.
Second.
That the will is distinct and different from the attestation, although both are necessary to the
validity of the will, similar, in our opinion, to a document which is not public so long as it is not acknowledged before a
notary, the document being a distinct and different thing from the acknowledgment, each of which must comply with
different requisites, among which is the signature of the maker which is necessary in the document but not in the
acknowledgment and both things being necessary to the existence of the public document.
Third. That the will proper must meet the requirements enumerated in the second paragraph of section 618 of
the Code of Civil Procedure.
Fourth. That the text of the attestation clause must express compliance with the requirements prescribed for the
will.
In the case at bar the attestation clause in question states the requirements prescribed for the will were complied
with, and this is enough for it, as such attestation clause, to be held as meeting the requirements prescribed by the law for
it.
The fact that in said clause the signature of the testator does not appear does not affect its validity, for, as above
stated, the law does not require that it be signed by the testator.
We find no merit in the assignment of error raising the question as to the validity of Act No. 2645, which is valid.
For the purposes of this decision, it is not necessary to reason out this conclusion, it being sufficient for the adjudication of
this case to hold the first error assigned by the appellants to have been demonstrated.
The foregoing conclusions lead us to hold, as we do hereby hold, that the document Exhibit A, as the last will and
testament of the deceased Antonino Vergel de Dios, meets all the requirements prescribed by the law now in force and
therefore it must be allowed to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the lower court proceed with the probate of the will
Exhibit A in accordance with law, without express pronouncement as to costs. So ordered.

EN BANC
G.R. No. L-2415

July 31, 1950

Testatee estate of the late Paula Toray. EUSTAQUIA TENEFRANCIA, petitioner-appellant,

vs.
ROSA ABAJA, oppositor-appellee.
Ditching and Ditching for petitioner-appellant.
Romeo C. Castillo for oppositor-appellee.
REYES, J.:
This is an appeal from an order of the Court of First Instance of Negros Occidental denying probate of a will.
The will in question purports to have been executed in August, 1943, by Paula Toray, who died the following month.
Presented for probate by one of the legatees, the herein appellant Eustaquia Tenefrancia, it was opposed by Rosa Abaja,
daughter of the deceased Eulogia Abaja, instituted heir in an earlier will executed by the same testatrix and her deceased
husband. The lower court disallowed the will on the ground that it was not executed in accordance with law in that the
attestation clause did not state that the testatrix signed the will in the presence of the instrumental witnesses.
Among the formalities prescribed by law (section 618 of Act 190, as amended by Act No. 2645) to a valid will is the
requirement that the attestation clause should state "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." This
requirement was not complied with in the present case, for the attestation clause fails to state that fact. This is obvious
from the following agreed translation of the said attestation clause:
Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao todos vecinos del Barrio Inayauan, Cawayan, Negros
occidental, Filipinas, testigos de este testamento, Testificamos que Paula Toray, la testadora que declaro que este
es su testamento o ultima voluntad y que cuando otorgo este testamento, ella estaba en su sano y cabal juicio,
habiendo hecho constar el mismo, en dos pliegos de papel, firmados por nosotros en presencia de la testadora, y
de nosotros tres testigos en todos los peligros de este testamento.
It is pointed out, however, that the attestation clause states that the testatrix declared in the presence of the three
witnesses that the document in question was her last will or testament, and it is argued that this testament taken together
with the preceding clause which reads: "En fe de todo lo cual firmo con mi nombre este mi testamento o ultima voluntad,
escrito en dialecto visayo que es el dialecto que poseo y hablo, en Inayauan, comprension de Cawayan, Filipinas, hoy a
16 de Agosto de 1943," expresses the idea that the testatrix signed the will in the presence of the witnesses. The
argument is not only far-fetched but it also overlooks the fact that it is in the attestation clause signed the will in the
presence of the subscribing witnesses, since that is one of the statements by law required to be embodied in the
attestation clause. The words above quoted, which, in the will in question, are written above the signature of the testator
and come before the attestation clause, do not form a part of the latter. By the attestation clause is meant "that clause
wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the
same." (Black, Law Dictionary.) It is signed not by the testator but by the witnesses, for it is a declaration made by the
witnesses and not by the testator. And the law is clear that it is the attestation clause that must contain a statement,
among others, that the testator signed the will in the presence of the witnesses. Without that statement, the attestation
clause is fatally defective.
This defect is not cured by proof aliunde or even by a judicial finding based upon such proof that the testator did in fact
sign the will in the presence of the subscribing witnesses. That is a fact required by law to be stated in the attestation
clause itself, and it is settled that where it is not so stated it cannot be established by evidence aliunde, and that where
such evidence has been admitted, even without opposition, it should not be given the effect intended. (Uy Coque vs.
Navas L. Sioca, 43 Phil., 405; Quinto vs. Morata, 54 Phil., 481.) In the case last cited this Court had the following to say:
It is vigorously contended on behalf of the appellant, that the alleged defect of the attestation clause 1 has been
cured by oral evidence, which was admitted without opposition on the part of the appellee. This contention cannot
be sustained. The doctrine of this court with reference to statute of frauds is not applicable to wills. The statute of
frauds relates to contracts and agreements. The subject of wills and testaments and the formalities surrounding
their execution are governed by separate and specific provisions of Act No. 190.
An examination of section 618 of Act No. 190, prior to, and after its amendment by Act No. 2645, shows clearly
that the legislature intended to exclude evidence aliunde tending to establish that the will has been executed and
attested in conformity with the requirements of the law, where such compliance does not appear on the face of the
will itself. Prior to its amendments, section 618 contained the following saving clause: "But the absence of such
form of attestation shall not render the will invalid if is as proven that the will was in fact signed and attested as in
this section provided."
The most outstanding feature of the amendment of said section 618 by Act No. 2645 is the elimination of said
saving clause and the greater emphasis laid on the formalities as to signatures and the attestation clause. There
can be no doubt, therefore, that the intention of the legislature, in eleminating said clause, was to exclude
evidence aliunde, and that where such evidence was admitted without opposition, it should not be given effect
and thus defeat the manifest intention of the legislation in amending said section 618.
Section 618 of Act No. 190, as amended, should be given a strict interpretation. In the case of Uy Coque vs.
Navas L. Sioca (43 Phil., 405) this court, speaking of the construction to be given to said section, said:

Statutes prescribing the formalities to be observed in the execution of wills are very strictly construed. As
stated in 40 Cyc., at page 1097, "A will must be executed in accordance with the statutory requirements;
otherwise it is entirely void. All these requirements stand as of equal importance and must be observed,
and courts cannot supply the defective execution of a will. No power or discretion is vested in them, either
to superadd other conditions or dispense with those enumerated in the statutes. (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 407.)
It is also urged that the lower court should not have entertained the opposition of Rosa Abaja, who had no legal interest in
the proceeding. But it does not appear that timely objection to the said opposition was made in the court below, and it is
settled that the mere fact that a stranger has been permitted to oppose the allowance of a will is not a reversible error and
does not invalidate the proceedings where no objection is interposed by any of the parties in interest. (Paras vs. Narciso,
35 Phil., 244.) It is true that in the course of Rosa Abaja's declaration, counsel for appellant made some manifestation
tending to question the admissibility of her testimony. But it is not clear that the remark was meant to be an objection to
the opposition itself. And in any event, even without opposition, the lower court could not have legally allowed the will in
question, for under section 618 of Act No. 190, as amended by Act No. 2645, no will shall be valid to pass any estate, real
or personal., nor charge or affect the same unless the attestation clause conforms to the requirements therein provided,
and the imperactive language of the Rules of Court (Rule 77, section 9 [a]) directs that the will "shall be disallowed" if not
executed and "attested as required by law."
In view of the foregoing, the order appealed from is affirmed, with costs against the appellant.

EN BANC
G.R. No. L-46097

October 18, 1939

TEOFILA ADEVA VIUDA DE LEYNEZ, petitioner,

vs.
IGNACIO LEYNEZ, respondent.
LAUREL, J.:
This is a petition for a writ of certiorari to review the decision of the Court of Appeals affirming the decision of the
Court of First Instance of Mindoro denying probate of the will of the deceased Valerio Leynez, on the ground that its
attestation clause does not conform to the requirements section 618, as amended, of the Code of Civil Procedure.
The attestation clause of the will is worded as follows:
Suscrito y declarado por el testador Valerio Leynez, como su ultima voluntad y testamento en presencia de
todos y cada uno de nosotros, y a ruego de dicho testador, firmamos el presente cada uno en presencia de los
otros, o de los demas y de la del mismo testador Valerio Leynez . El testamento consta de los (2) paginas
solamente.
The question presented is, under section 618, as amended, of the Code of Civil Procedure, is this attestation clause
legally sufficient? The pertinent portion of this section of the Code is as follows:
. . . 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, an the later witnessed and signed the will and all
pages thereof in the presence of the testator and of each other.
The alleged defect in the attestation clause of the controverted will is that it fails to state that the testator and the
three witnesses signed each and every page of the will in the manner prescribed by law, because it merely states
"firmanos el presente cada uno en presencia de los otros, o de los demas y de la del mismo testador Valerio Leynez." In
deciding this question the Court of Appeals, however, ruled:
A la luz de las jurisprudencias arriba citadas en la clausada de atestiguamiento discutida en el asunto de
autos no encontramos un cumplimiento sustantial del requisito exigido por la ley, de que en ella se haga constar
que el testador y los testigos han firmado unos en presencia de otros, todas y cada una de las paginas usadas
del testamento, requisito que no se puede establecer por medio de su prueba aliunde.
Against this conclusion of the Court of Appeals, petitioner puts forward the contention that it has decided a question
of substance in a way not probably in accord with the law and the applicable decisions of this court (Rule 47, paragraph e
[1] of Supreme Court.) The rule of liberal construction of the applicable law should, petitioner avers, be held to apply in the
case at bar, and in support of her content on she invokes a long array of cases (Abangan vs .Abangan, 40 Phil., 476;
Avera vs. Garcia and Rodriguez, 42 Phil., 145; Aldaba vs. Roque, 43 Phil., 378; Unson vs .Abella, 43 Phil., 494;
Fernandez vs. Vergel de Dios, 46 Phil., 922; Nayve vs. Mojal, 47 Phil., 152; De Gala vs .Gonzalez, 53 Phil., 104; Rey vs.
Cartagena, 56 Phil., 282; Dichoso de Ticson vs. De Gorostiza, 57 Phil., 437; Sebastian vs. Paganiban, 59 Phil., 653; De
Guzman vs. Celestino, G.R. No. 35273, April 25, 1932; Policarpio vs. Baltazar, G.R. No. 36349, November 14, 1932;
Malate vs. Olea, G.R. No. 36154, December 16, 1932; In re Estate of Jennings, 1933, G.R. No. 38758). To this line of
cases those of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939, and Grey vs. Fabie, G.R. No. 45160, May 23, 1939,
may perhaps be added. Respondent, on the other hand, equally invokes a number of cases wherein, he contends, the
rule of strict construction was made to prevail. (Uy Coque vs. Navas L. Sioca, 43 Phil., 405; In re Estate of Neuark, 46
Phil., 841; Sao vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil., 481;
Rodriguez vs. Alcala, 55 Phil., 150.)
This Court has already taken notice of these different views within, in Dichoso de Ticson vs. De Gorostiza (57 Phil.,
437, 439-440), it frankly made the following observation : "The truth is that there have been, noticeable in the Philippines
two divergent tendencies in the law of wills the one being planted on strict construction and the other on liberal
construction. A late example of the former views may be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil.,
150), sanctioning a literal enforcement of the law. The basic case in the other direction, predicated on reason, is Abangan
vs. Abangan ([1919], 40 Phil., 476), oft-cited approvingly in later decisions." It is fairness to recognize the existence of
opposing currents of legal thought, a situation which perhaps has brought about a certain degree of confusion in this field.
It is also fairness to avow, however, that a more careful examination of the cases will show that, while the two tendencies
mentioned in easily discernible, the conflict in many cases is more apparent than real, and the variance, if at all, in the
application of the principles involved was due in some instances to the marked differentiation of facts and the consequent
personal or collective criteria in particular cases.lwphi1.nt
We have taken pains to examine the numerous cases relied upon by the petitioner and those relied upon by the
respondent, and while we do not deem it necessary to make a detailed comparison between them, we find no difficulty in
selecting what we consider is the reasonable rule to apply in this case at bar. It is, of course, not possible to lay down a
general rule, rigid and inflexible, which would be applicable to all cases. 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 will, 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
towards its admission to probate, although the document may suffer from some imperfection of language, or other nonessential defect. This, in our opinion, is the situation in the present case, and we, therefore, hold that the requirement that
the attestation clause, among other things, shall state "that the testator signed the will and every page thereof in the

presence of three witnesses, and that the witnesses signed the will in the presence of the testator and of each other," is
sufficiently complied with, it appearing that the testator and the witnesses signed each and every page of the will
according to the stipulation of the parties. (Record on Appeal, stipulation, pp. 10, 14, 15); and this fact being shown in the
will itself, and there being, furthermore, no question raised as to the authenticity of the signature of the testator and the
witnesses.
An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the
execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still
be proved. (Thompson on Wills, 2 ed., sec. 132.) A will, therefore, should not be rejected where its attestation clause
serves the purpose of the law. The law-making body, in recognition of the dangers to which testamentary dispositions are
apt to be subject in the hands of unscrupulous individuals, has surrounded the execution of the wills with every solemnity
deemed necessary to safeguard it. This purpose was indicated when our legislature provided for the exclusion of evidence
aliunde to prove the execution of the will. We should not, however, attribute the prohibition as indicative of a desire to
impose unreasonable restraint or beyond what reason and justice permit. It could not have been the intention of the
legislature in providing for the essential safeguards in the execution of a will to shackle the very right of testamentary
disposition which the law recognizes and holds sacred. The pronouncement of this Court in Abangan vs. Abangan (40
Phil., 476, 479), expresses the sound rule to which we have recently adhered in principle. (Rodriguez vs. Yap, G.R. No.
45924, promulgated May 18, 1939; and Grey vs. Fabie, G.R. No. 45160, promulgated May 23, 1939):
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. Therefore the laws
on this 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 last
will, must be disregarded.
It follows that the writ of certiorari should be, as it is hereby, granted and the judgment of the Court of Appeals
reversed, with the result that the controverted will, Exhibit A, of the deceased Valerio Leynez, shall be admitted to probate.
So ordered, with costs against the respondent-appellee. So ordered.

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.
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 parte praying 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?
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
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 the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs.
SO ORDERED.

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SECOND DIVISION
[G.R. No. 42258. January 15, 1936.]

In re Will of the deceased Leoncia Tolentino, VICTORIO PAYAD, petitioner-appellant, vs. AQUILINA TOLENTINO,
oppositor-appellant.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DECISION
GODDARD, J p:
Both parties in this case appeal from an order of the trial court denying the probate of the alleged will of Leoncia
Tolentino, deceased. That court found that the will in question was executed by the deceased on the date appearing
thereon, September 7, 1933, one day before the death of the testatrix, contrary to the contention of the oppositor that it
was executed after her death. The court, however, denied probate on the ground that the attestation clause was not in
conformity with the requirements of law in that it is not stated therein that the testatrix caused Attorney Almario to write her
name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in not finding that the will
in question was executed after the death of Leoncia Tolentino, or that she was mentally and physically incapable of
executing said will one day before her death. After a careful examination of the evidence on these points we find no
reason for setting aside the conclusion of the trial court as set forth above. The assignments of the oppositor-appellant are
therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial court denied probate of the will on the
sole ground that the attestation clause does not state that the testatrix requested Attorney Almario to write her name. The
last paragraph of the questioned will reads in part as follows:
"En prueba de todo la cual, firmo el presente testamento con mi marca digital, porque no puedo estampar mi
firma a causa de mi debilidad, rogando al abogado M. Almario que ponga mi nombre en el sitio donde he de estampar mi
marca digital . . ."
The evidence of record establishes the fact the Leoncia Tolentino, assisted by Attorney Almario, placed her thumb
mark on each and every page of the questioned will and that said attorney merely wrote her name to indicate the place
where she placed said thumb mark. In other words Attorney Almario did not sign for the testatrix. She signed by placing
her thumb mark on each and every page thereof. "A statute requiring a will to be 'signed' is satisfied if the signature is
made by the testator's mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.) It is clear, therefore, that it was not necessary that the attestation clause in question should state that the testatrix
requested Attorney Almario to sign her name inasmuch as the testatrix signed the will in question in accordance with law.
The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino, deceased, is hereby
admitted to probate with the costs of this appeal against the oppositor-appellant.

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FIRST DIVISION
[G.R. No. 26135. March 3, 1927.]

In re will of Eustaquio Hagoriles. PETRONILO GUMBAN, petitioner-appellee, vs. INOCENCIA GORECHO ET AL.,
opponents-appellants.
Powell & Hill for appellants.
Padilla, Treas & Magalona and Francisco, Lualhati & Lopez for appellee.
DECISION
MALCOLM, J p:
This is an appeal by the widow, Inocencia Gorecho, and eighteen other opponents, from an order of the Court of
First Instance of Iloilo probating the document presented by Petronilo Gumban as the last will and testament of the
deceased Eustaquio Hagoriles. Among the errors assigned is included the finding of the trial court that the alleged will was
prepared in conformity with the law, notwithstanding it did not contain an attestation clause stating that the testator and the
witnesses signed all the pages of the will.
In support of their argument on the assignment of error above mentioned, appellants rely on a series of cases of
this court beginning with in the Matter of the Estate of Saguinsin ( [1920], 41 Phil., 875), continuing with in 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 in Sao vs. Quintana ([1925], 48 Phil., 50G). Appellee counters with the citation of
a series of cases beginning with Abangan 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 Sao vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Sao 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 state 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 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 fact 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 by casuistry of the extreme type, it would be 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 618 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 618, 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 cases: 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 Sao vs. Quintana, supra, and, to the extent necessary, modify
the decision in the case of Nayve vs. Mojal and Aguilar, supra.
It may not be said here that our ruling is predicated on technicality or injustice. The will in question was formulated
in a medley of three languages, Visayan, English, and Spanish. Suspicious circumstances surrounded the making of the
will by the bedridden old man, who is alleged to have signed it. However, no express pronouncements on the two
important questions relating to the language of the will and the testamentary capacity of the deceased are required.
The order appealed from will be reversed, and the document Exhibit A disallowed as a will, without special
pronouncement as to costs in either instance. So ordered.

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SECOND DIVISION
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA CABALLERO, OSCAR
LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO,
and CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero,
respondents.
REGALADO, J.:
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. 3899R 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 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, 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 the
attesting 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 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 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 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 with Abangan 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 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.
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 of
Rodriguez 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.

EN BANC
[G.R. No. L-5826. April 29, 1953.]
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET
AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.
DECISION
PARAS, C.J p:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to
probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation
clause is not signed by the attesting witnesses. 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. LLphil
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.
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.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs
against the petitioner and appellee.

[blank]

FIRST DIVISION
G.R. No. 102784 February 28, 1996
ROSA LIM, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
HERMOSISIMA, JR., J.:
This is a petition to review the Decision of the Court of Appeals in CA-G.R. CR No. 10290, entitled "People v. Rosa Lim,"
promulgated on August 30, 1991.
On January 26, 1989, an Information for Estafa was filed against petitioner Rosa Lim before Branch 92 of the Regional
Trial Court of Quezon City. 1 The Information reads:
That on or about the 8th day of October 1987, in Quezon City, Philippines and within the jurisdiction of
this Honorable Court, the said accused with intent to gain, with unfaithfulness and/or abuse of confidence,
did, then and there, wilfully, unlawfully and feloniously defraud one VICTORIA SUAREZ, in the following
manner, to wit: on the date and place aforementioned said accused got and received in trust from said
complainant one (1) ring 3.35 solo worth P169,000.00, Philippine Currency, with the obligation to sell the
same on commission basis and to turn over the proceeds of the sale to said complainant or to return said
jewelry if unsold, but the said accused once in possession thereof and far from complying with her
obligation despite repeated demands therefor, misapplied, misappropriated and converted the same to
her own personal use and benefit, to the damage and prejudice of the said offended party in the amount
aforementioned and in such other amount as may be awarded under the provisions of the Civil Code.
CONTRARY TO LAW. 2
After arraignment and trial on the merits, the trial court rendered judgment, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused Rosa Lim GUILTY beyond reasonable doubt of the offense of estafa as defined and
penalized under Article 315, paragraph 1(b) of the Revised Penal Code;
2. Sentencing her to suffer the Indeterminate penalty of FOUR (4) YEARS and TWO (2) MONTHS of
prision correccional as minimum, to TEN (10) YEARS of prision mayor as maximum;
3. Ordering her to return to the offended party Mrs. Victoria Suarez the ring or its value in the amount of
P169,000 without subsidiary imprisonment in case insolvency; and
4. To pay costs. 3
On appeal, the Court of Appeals affirmed the judgment of conviction with the modification that the penalty imposed shall
be six (6) years, eight (8) months and twenty-one (21) days to twenty (20) years in accordance with Article 315, paragraph
1 of the Revised Penal Code. 4
Petitioner filed a motion for reconsideration before the appellate court on September 20, 1991, but the motion was denied
in a Resolution dated November 11, 1991.
In her final bid to exonerate herself, petitioner filed the instant petition for review alleging the following grounds:
I
THE RESPONDENT COURT VIOLATED THE CONSTITUTION, THE RULES OF COURT AND THE
DECISION OF THIS HONORABLE COURT IN NOT PASSING UPON THE FIRST AND THIRD
ASSIGNED ERRORS IN PETITIONER'S BRIEF;
II
THE RESPONDENT COURT FAILED TO APPLY THE PRINCIPLE THAT THE PAROL EVIDENCE RULE
WAS WAIVED WHEN THE PRIVATE PROSECUTOR CROSS-EXAMINED THE PETITIONER AND
AURELIA NADERA AND WHEN COMPLAINANT WAS CROSS-EXAMINED BY THE COUNSEL FOR
THE PETITIONER AS TO THE TRUE NATURE OF THE AGREEMENT BETWEEN THE PARTIES
WHEREIN IT WAS DISCLOSED THAT THE TRUE AGREEMENT OF THE PARTIES WAS A SALE OF
JEWELRIES AND NOT WHAT WAS EMBODIED IN THE RECEIPT MARKED AS EXHIBIT "A" WHICH
WAS RELIED UPON BY THE RESPONDENT COURT IN AFFIRMING THE JUDGMENT OF
CONVICTION AGAINST HEREIN PETITIONER; and

III
THE RESPONDENT COURT FAILED TO APPLY IN THIS CASE THE PRINCIPLE ENUNCIATED BY
THIS HONORABLE COURT TO THE EFFECT THAT "ACCUSATION" IS NOT, ACCORDING TO THE
FUNDAMENTAL LAW, SYNONYMOUS WITH GUILT: THE PROSECUTION MUST OVERTHROW THE
PRESUMPTION OF INNOCENCE WITH PROOF OF GUILT BEYOND REASONABLE DOUBT. TO
MEET THIS STANDARD, THERE IS NEED FOR THE MOST CAREFUL SCRUTINY OF THE
TESTIMONY OF THE STATE, BOTH ORAL AND DOCUMENTARY, INDEPENDENTLY OF WHATEVER
DEFENSE IS OFFERED BY THE ACCUSED. ONLY IF THE JUDGE BELOW AND THE APPELLATE
TRIBUNAL COULD ARRIVE AT A CONCLUSION THAT THE CRIME HAD BEEN COMMITTED
PRECISELY BY THE PERSON ON TRIAL UNDER SUCH AN EXACTING TEST SHOULD SENTENCE
THUS REQUIRED THAT EVERY INNOCENCE BE DULY TAKEN INTO ACCOUNT. THE PROOF
AGAINST HIM MUST SURVIVE THE TEST OF REASON; THE STRONGEST SUSPICION MUST NOT
BE PERMITTED TO SWAY JUDGMENT. (People v. Austria, 195 SCRA 700) 5
Herein the pertinent facts as alleged by the prosecution.
On or about October 8, 1987, petitioner Rosa Lim who had come from Cebu received from private respondent Victoria
Suarez the following two pieces of jewelry; one (1) 3.35 carat diamond ring worth P169,000.00 and one (1) bracelet worth
P170,000.00, to be sold on commission basis. The agreement was reflected in a receipt marked as Exhibit "A" 6 for the
prosecution. The transaction took place at the Sir Williams Apartelle in Timog Avenue, Quezon City, where Rosa Lim was
temporarily billeted.
On December 15, 1987, petitioner returned the bracelet to Vicky Suarez, but failed to return the diamond ring or to turn
over the proceeds thereof if sold. As a result, private complainant, aside from making verbal demands, wrote a demand
letter 7 to petitioner asking for the return of said ring or the proceeds of the sale thereof. In response, petitioner, thru
counsel, wrote a letter 8 to private respondent's counsel alleging that Rosa Lim had returned both ring and bracelet to
Vicky Suarez sometime in September, 1987, for which reason, petitioner had no longer any liability to Mrs. Suarez insofar
as the pieces of jewelry were concerned. Irked, Vicky Suarez filed a complaint for estafa under Article 315, par l(b) of the
Revised Penal Code for which the petitioner herein stands convicted.
Petitioner has a different version.
Rosa Lim admitted in court that she arrived in Manila from Cebu sometime in October 1987, together with one Aurelia
Nadera, who introduced petitioner to private respondent, and that they were lodged at the Williams Apartelle in Timog,
Quezon City. Petitioner denied that the transaction was for her to sell the two pieces of jewelry on commission basis. She
told Mrs. Suarez that she would consider buying the pieces of jewelry far her own use and that she would inform the
private complainant of such decision before she goes back to Cebu. Thereafter, the petitioner took the pieces of jewelry
and told Mrs. Suarez to prepare the "necessary paper for me to sign because I was not yet prepare (d) to buy it." 9 After
the document was prepared, petitioner signed it. To prove that she did not agree to the terms of the receipt regarding the
sale on commission basis, petitioner insists that she signed the aforesaid document on the upper portion thereof and not
at the bottom where a space is provided for the signature of the person(s) receiving the jewelry. 10
On October 12, 1987 before departing for Cebu, petitioner called up Mrs. Suarez by telephone in order to inform her that
she was no longer interested in the ring and bracelet. Mrs. Suarez replied that she was busy at the time and so, she
instructed the petitioner to give the pieces of jewelry to Aurelia Nadera who would in turn give them back to the private
complainant. The petitioner did as she was told and gave the two pieces of jewelry to Nadera as evidenced by a
handwritten receipt, dated October 12, 1987. 11
Two issues need to be resolved: First, what was the real transaction between Rosa Lim and Vicky Suarez a contract of
agency to sell on commission basis as set out in the receipt or a sale on credit; and, second, was the subject diamond
ring returned to Mrs. Suarez through Aurelia Nadera?
Petitioner maintains that she cannot be liable for estafa since she never received the jewelries in trust or on commission
basis from Vicky Suarez. The real agreement between her and the private respondent was a sale on credit with Mrs.
Suarez as the owner-seller and petitioner as the buyer, as indicated by the bet that petitioner did not sign on the blank
space provided for the signature of the person receiving the jewelry but at the upper portion thereof immediately below the
description of the items taken. 12
The contention is far from meritorious.
The receipt marked as Exhibit "A" which establishes a contract of agency to sell on commission basis between Vicky
Suarez and Rosa Lim is herein reproduced in order to come to a proper perspective:
THIS IS TO CERTIFY, that I received from Vicky Suarez PINATUTUNAYAN KO na aking tinanggap kay
___________ the following jewelries:
ang mga alahas na sumusunod:
Description Price
Mga Uri Halaga

l ring 3.35 dolo P 169,000.00

1 bracelet 170,000.00
total Kabuuan P 339,000.00
in good condition, to be sold in CASH ONLY within . . . days from date of signing this receipt na nasa
mabuting kalagayan upang ipagbili ng KALIWAAN (ALCONTADO) lamang sa loob ng . . . araw mula ng
ating pagkalagdaan:
if I could not sell, I shall return all the jewelry within the period mentioned above; if I would
be able to sell, I shall immediately deliver and account the whole proceeds of sale thereof
to the owner of the jewelries at his/her residence; my compensation or commission shall
be the over-price on the value of each jewelry quoted above. I am prohibited to sell any
jewelry on credit or by installment; deposit, give for safekeeping: lend, pledge or give as
security or guaranty under any circumstance or manner, any jewelry to other person or
persons.
kung hindi ko maipagbili ay isasauli ko ang lahat ng alahas sa loob ng taning na
panahong nakatala sa itaas; kung maipagbili ko naman ay dagli kong isusulit at ibibigay
ang buong pinagbilhan sa may-ari ng mga alahas sa kanyang bahay tahanan; ang aking
gantimpala ay ang mapapahigit na halaga sa nakatakdang halaga sa itaas ng bawat
alahas HINDI ko ipinahihintulutang ipa-u-u-tang o ibibigay na hulugan ang alin mang
alahas, ilalagak, ipagkakatiwala; ipahihiram; isasangla o ipananagot kahit sa anong
paraan ang alin mang alahas sa ibang mga tao o tao.
I sign my name this . . . day of . . . 19 . . . at Manila, NILALAGDAAN ko ang kasunduang ito ngayong ika
_____ ng dito sa Maynila.
___________________
Signature of Persons who
received jewelries (Lagda
ng Tumanggap ng mga
Alahas)
Address: . . . . . . . . . . . .
Rosa Lim's signature indeed appears on the upper portion of the receipt immediately below the description of the items
taken: We find that this fact does not have the effect of altering the terms of the transaction from a contract of agency to
sell on commission basis to a contract of sale. Neither does it indicate absence or vitiation of consent thereto on the part
of Rosa Lim which would make the contract void or voidable. The moment she affixed her signature thereon, petitioner
became bound by all the terms stipulated in the receipt. She, thus, opened herself to all the legal obligations that may
arise from their breach. This is clear from Article 1356 of the New Civil Code which provides:
Contracts shall be obligatory in whatever form they may have been entered into, provided all the essential
requisites for their validity are present. . . .
However, there are some provisions of the law which require certain formalities for particular contracts. The first is
when the form is required for the validity of the contract; the second is when it is required to make the contract
effective as against third parties such as those mentioned in Articles 1357 and 1358; and the third is when the
form is required for the purpose of proving the existence of the contract, such as those provided in the Statute of
Frauds in article 1403. 13 A contract of agency to sell on commission basis does not belong to any of these three
categories, hence it is valid and enforceable in whatever form it may be entered into.
Furthermore, there is only one type of legal instrument where the law strictly prescribes the location of the signature of the
parties thereto. This is in the case of notarial wills found in Article 805 of the Civil Code, to wit:
Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself . . . .
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. . . .
In the case before us, the parties did not execute a notarial will but a simple contract of agency to sell on commission
basis, thus making the position of petitioner's signature thereto immaterial.
Petitioner insists, however, that the diamond ring had been returned to Vicky Suarez through Aurelia Nadera, thus
relieving her of any liability. Rosa Lim testified to this effect on direct examination by her counsel:
Q: And when she left the jewelries with you, what did you do thereafter?

A: On October 12, I was bound for Cebu. So I called up Vicky through telephone and
informed her that I am no longer interested in the bracelet and ring and that I will just
return it.
Q: And what was the reply of Vicky Suarez?
A: She told me that she could not come to the apartelle since she was very busy. So, she
asked me if Aurelia was there and when I informed her that Aurelia was there, she
instructed me to give the pieces of jewelry to Aurelia who in turn will give it back to Vicky.
Q: And you gave the two (2) pieces of jewelry to Aurelia Nadera?
A: Yes, Your Honor. 14
This was supported by Aurelia Nadera in her direct examination by petitioner's counsel:
Q: Do you know if Rosa Lim in fact returned the jewelries?
A: She gave the jewelries to me.
Q: Why did Rosa Lim give the jewelries to you?
A: Rosa Lim called up Vicky Suarez the following morning and told Vicky Suarez that she
was going home to Cebu and asked if she could give the jewelries to me.
Q: And when did Rosa Lim give to you the jewelries?
A: Before she left for Cebu.

15

On rebuttal, these testimonies were belied by Vicky Suarez herself:

Q: It has been testified to here also by both Aurelia Nadera and Rosa Lim that you gave
authorization to Rosa Lim to turn over the two (2) pieces of jewelries mentioned in Exhibit
"A" to Aurelia Nadera, what can you say about that?
A: That is not true sir, because at that time Aurelia Nadera is highly indebted to me in the
amount of P140,000.00, so if I gave it to Nadera, I will be exposing myself to a high risk.
16

The issue as to the return of the ring boils down to one of credibility. Weight of evidence is not determined mathematically
by the numerical superiority of the witnesses testifying to a given fact. It depends upon its practical effect in inducing belief
on the part of the judge trying the case. 17 In the case at bench, both the trial court and the Court of Appeals gave weight to
the testimony of Vicky Suarez that she did not authorize Rosa Lim to return the pieces of jewelry to Nadera. The
respondent court, in affirming the trial court, said:
. . . This claim (that the ring had been returned to Suarez thru Nadera) is disconcerting. It contravenes the
very terms of Exhibit A. The instruction by the complaining witness to appellant to deliver the ring to
Aurelia Nadera is vehemently denied by the complaining witness, who declared that she did not authorize
and/or instruct appellant to do so. And thus, by delivering the ring to Aurelia without the express authority
and consent of the complaining witness, appellant assumed the right to dispose of the jewelry as if it were
hers, thereby committing conversion, a clear breach of trust, punishable under Article 315, par. 1(b),
Revised Penal Code.
We shall not disturb this finding of the respondent court. It is well settled that we should not interfere with the judgment of
the trial court in determining the credibility of witnesses, unless there appears in the record some fact or circumstance of
weight and influence which has been overlooked or the significance of which has been misinterpreted. The reason is that
the trial court is in a better position to determine questions involving credibility having heard the witnesses and having
observed their deportment and manner of testifying during the trial. 18
Article 315, par. 1(b) of the Revised Penal Code provides:
Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned
hereinbelow shall be punished by:
xxx xxx xxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal
property received by the offender in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same, even though such obligation be

totally or partially guaranteed by a bond; or by denying having received such money, goods, or other
property.
xxx xxx xxx
The elements of estafa with abuse of confidence under this subdivision are as follows. (1) That money, goods, or other
personal property be received by the offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the same; (2) That there be misappropriation or conversion
of such money or property by the offender or denial on his part of such receipt; (3) That such misappropriation or
conversion or denial is to the prejudice of another; and (4) That there is a demand made by the offended party to the
offender (Note: The 4th element is not necessary when there is evidence of misappropriation of the goods by the
defendant) 19
All the elements of estafa under Article 315, Paragraph 1(b) of the Revised Penal Code, are present in the case at bench.
First, the receipt marked as Exhibit "A" proves that petitioner Rosa Lim received the pieces of jewelry in trust from Vicky
Suarez to be sold on commission basis. Second, petitioner misappropriated or converted the jewelry to her own use; and,
third, such misappropriation obviously caused damage and prejudice to the private respondent.
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals is hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.

[blank]

FIRST DIVISION
G.R. No. 131953

June 5, 2002

MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners,

vs.
THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA, ESTRELLA M. CAETE,
LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C. NATIVIDAD namely, OSCAR C. NATIVIDAD,
OLGA NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD, RICHARD NATIVIDAD, RAYMUND NATIVIDAD,
RICHIE NATIVIDAD, SONIA NATIVIDAD and ENCARNACION CABATINGAN VDA. DE TRINIDAD, ALFREDO
CABATINGAN and JESUSA C. NAVADA, respondents.
AUSTRIA-MARTINEZ, J.:
Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is the
sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa.
The facts of the case are as follows:
On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a "Deed of
Conditional of Donation (sic) Inter Vivos for House and Lot" covering one-half () portion of the former's house and lot
located at Cot-cot, Liloan, Cebu.1 Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan
on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land - one located in Cogon,
Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas
Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a
portion of the Masbate property (80,000 sq. m.). 2 These deeds of donation contain similar provisions, to wit:
"That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR does
hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property,
together with the buildings and all improvements existing thereon, to become effective upon the death of the
DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the
present donation shall be deemed automatically rescinded and of no further force and effect; x x x"3
(Emphasis Ours)
On May 9, 1995, Conchita Cabatingan died.
Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue,
Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as Civil
Case No. MAN-2599, seeking the annulment of said four (4) deeds of donation executed on January 14, 1995.
Respondents allege, inter alia, that petitioners, through their sinister machinations and strategies and taking advantage of
Conchita Cabatingan's fragile condition, caused the execution of the deeds of donation, and, that the documents are void
for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that
these are donations mortis causa.4 Respondents prayed that a receiver be appointed in order to preserve the disputed
properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas
Cabatingan.5
Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita Cabatingan freely,
knowingly and voluntarily caused the preparation of the instruments. 6
On respondents' motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of
respondents, with the following dispositive portion:
"WHEREREFORE, and in consideration of all the foregoing, judgment is hereby rendered in favor of the plaintiffs
and against the defendant and unwilling co-plaintiff with regards (sic) to the four Deeds of Donation Annexes "A",
"A-1", "B" and Annex "C" which is the subject of this partial decision by:
Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa and for
failure to comply with formal and solemn requisite under Art. 806 of the New Civil Code;
b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the deceased
Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this partial decision,
as mandated under Art. 777 of the New Civil Code;
SO ORDERED."7
The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed
on January 14, 1995 are null and void for failure to comply with the requisites of Article 806 of the Civil Code on
solemnities of wills and testaments.8
Raising questions of law, petitioners elevated the court a quo's decision to this Court,9 alleging that:

"THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED RULINGS OF THIS

HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF DONATIONS AS INTER VIVOS OR
MORTIS CAUSA AND, INSTEAD, PROCEEDED TO INTERPRET THE DONATIONS IN QUESTION IN A
MANNER CONTRARY THERETO."10
Petitioners insist that the donations are inter vivos donations as these were made by the late Conchita Cabatingan "in
consideration of the love and affection of the donor" for the donee, and there is nothing in the deeds which indicate that
the donations were made in consideration of Cabatingan's death. 11 In addition, petitioners contend that the stipulation on
rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as
inter vivos.
Petitioners' arguments are bereft of merit.
In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive." 12 In
determining whether a donation is one of mortis causa, the following characteristics must be taken into account:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the
same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may
be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;
and
(3) That the transfer should be void if the transferor should survive the transferee. 13
In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain
any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death. 14 The phrase "to
become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to
transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the
donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of
donation, to wit:
"That the DONEE does hereby accept the foregoing donation mortis causa under the terms and conditions set
forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity
of the DONOR."
xxx
"SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which
consists of two (2) pages x x x."15
That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations as
inter vivos because transfers mortis causa may also be made for the same reason.16
Well in point is National Treasurer of the Phils. v. Vda. de Meimban.17 In said case, the questioned donation contained
the provision:
"That for and in consideration of the love and affection which the DONOR has for the DONEE, the said Donor by
these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ONE
HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the above
described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan Subdivision of
Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become effective upon the
death of the DONOR. (italics supplied.)"18
Notably, the foregoing provision is similar to that contained in the donation executed by Cabatingan. We held in Meimban
case that the donation is a mortis causa donation, and that the above quoted provision establishes the donor's intention to
transfer the ownership and possession of the donated property to the donee only after the former's death. Further:
"As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been complied
with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no effect. As we have
held in Alejandro v. Geraldez (78 SCRA 245,253), "If the donation is made in contemplation of the donor's death,
meaning that the full or naked ownership of the donated properties will pass to the donee because of the donor's
death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be
embodied in a last will and testament. (Citing Bonsato v. Court of Appeals, 95 Phil. 481)." 19
We apply the above rulings to the present case. The herein subject deeds expressly provide that the donation shall be
rescinded in case petitioners predecease Conchita Cabatingan. As stated in Reyes v. Mosqueda,20 one of the decisive
characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the
donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take

effect during her lifetime and that the ownership of the properties donated be transferred to the donee or independently of,
and not by reason of her death, she would have not expressed such proviso in the subject deeds.1wphi1.nt
Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary
provisions21 and as such, said deeds must be executed in accordance with the requisites on solemnities of wills and
testaments under Articles 805 and 806 of the Civil Code, to wit:
"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.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)
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. (n)"
The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were
not executed in the manner provided for under the above-quoted provisions of law.
Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.

[blank]

THIRD DIVISION
G.R. No. 122880

April 12, 2006

FELIX AZUELA, Petitioner,

vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, Respondents.
DECISION
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
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 # 1437-977-81
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 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-inlaw, 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.
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. Sioca13
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. Florentino19 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 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 Appeals26 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.)
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 and Taboada. 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. Cagro36 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) Justices38 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.
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 ngayong 10 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. 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.

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EN BANC
[G.R. No. L-20357. November 25, 1967.]
IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO GATCHALIAN,
deceased. PEDRO REYES GARCIA, petitioner-appellant, vs. FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES
G. COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees.
E. Debuque for petitioner-appellant.
E. L. Segovia for oppositors-appellees.
DECISION
DIZON, J p:

This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance of Rizal in Special
Proceedings No. 2623 denying the allowance of the will of the late Gregorio Gatchalian, on the ground that the attesting
witnesses did not acknowledge it before a notary public as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the municipality of Pasig, Province
of Rizal, leaving no forced heirs. On April 2 of the same year, appellant filed a petition with the above-named court for the
probate of said alleged will (Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins,
Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles C. Talanay, appellees herein, opposed the petition
on the ground, among others, that the will was procured by fraud; that the deceased did not intend the instrument signed
by him to be as his will; and that the deceased was physically and mentally incapable of making a will at the time of the
alleged execution of said will.
After due trial, the court rendered the appealed decision finding the document Exhibit "C" to be the authentic last
will of the deceased but disallowing it for failure to comply with the mandatory requirement of Article 806 of the New Civil
Code that the will must be acknowledged before a notary public by the testator and the witnesses.
An examination of the document (Exhibit "C") shows that the same was acknowledged before a notary public by
the testator but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:
"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."
We have held heretofore that compliance with the requirement contained in the above legal provision to the effect
that a will must be acknowledged before a notary public by the testator and also by the witnesses is indispensable for its
validity (In re: Testate Estate of Alberto, G.R. No. L-11948, April 29, 1959). As the document under consideration does not
comply with this requirement, it is obvious that the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with costs.

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FIRST DIVISION
[G.R. No. L-7179. June 30, 1955.]
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee, vs. DOA MATEA
LEDESMA, oppositor-appellant.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
DECISION
REYES, J.B.L., J p:

By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate the documents in the Visayan
dialect, marked Exhibits D and E, as the testament and codicil duly executed by the deceased Da. Apolinaria Ledesma
Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de Tabiana
and Vicente Yap as witnesses. The contestant, Da. Matea Ledesma, sister and nearest surviving relative of said
deceased, appealed from the decision, insisting that the said exhibits were not executed in conformity with law. The
appeal was made directly to this Court because the value of the properties involved exceeded two hundred thousand
pesos.
Originally the opposition to the probate also charged that the testatrix lacked testamentary capacity and that the
dispositions were procured through undue influence. These grounds were abandoned at the hearing in the court below,
where the issue was concentrated into three specific questions: (1) whether the testament of 1950 was executed by the
testatrix in the presence of the instrumental witnesses; (2) whether the acknowledgment clause was signed and the
notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil
was thereby rendered invalid and ineffective. These questions are the same ones presented to us for resolution.
The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and
Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950,
they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the
"testamento" and urge her to go to attorney Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go,
because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and
not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement
that no one would question it because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing the trial Court's rejection of the
improbable story of these witnesses. It is squarely contradicted by the concordant testimony of the instrumental
witnesses, Vicente Yap, Atty. Ramon C. Tabiana, and his wife Gloria Montinola, who asserted under oath that the
testament was executed by testatrix and witnesses in the presence of each other, at the house of the decedent on
General Hughes St., Iloilo City, on March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or
Yap should have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house in order to
execute her will, when all three witnesses could have easily repaired thither for the purpose. Moreover, the crossexamination has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to have heard the word
"testamento" for the first time when Yap used it; and yet they claimed ability to recall that word four years later, despite the
fact that the term meant nothing to either. It is well known that what is to be remembered must first be rationally conceived
and assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought the will, and that
the deceased alone signed it, precisely on March 30, 1950; but she could remember no other date, nor give satisfactory
explanation why that particular day stuck in her mind. Worse still, Allado claimed to have heard what allegedly transpired
between Yap and Da. Apolinaria from the kitchen of the house, that was later proved to have been separated from the
deceased's quarters, and standing at a much lower level, so that conversations in the main building could not be distinctly
heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony by claiming that he was
upstairs in a room where the servants used to eat when he heard Yap converse with his mistress; but this correction is
unavailing, since it was plainly induced by two highly leading questions from contestant's counsel that had been previously
ruled out by the trial Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the
deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon us by the
contestant-appellant, concerning the presence or absence of Aurelio Montinola at the signing of the testament or of the
codicil, and the identity of the person who inserted the date therein, are not material and are largely imaginary, since the
witness Mrs. Tabiana confessed inability to remember all the details of the transaction. Neither are we impressed by the
argument that the use of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propieda) is
proof that its contents were not understood by the testatrix, it appearing in evidence that those terms are of common use
even in the vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of the certificate of acknowledgment
(in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was executed after the
enactment of the new Civil Code, and, therefore, had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had
been signed by the testratrix and the witnesses at San Pablo Hospital, the same was signed and sealed by notary public
Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so, but brought the codicil to his
office, and signed and sealed it there. The variance does not necessarily imply conscious perversion of truth on the part of
the witnesses, but appears rather due to a well- established phenomenon, the tendency of the mind, in recalling past
events, to substitute the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen McGovern,
27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the certification of acknowledgment
in the presence of the testatrix and the witnesses, does not affect the validity of the codicil. Unlike the Code of 1889 (Art.
699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in
one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses must
sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary
public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity
of their signatures and the voluntariness of their actions in executing the testamentary disposition. This was done in the
case before us. The subsequent signing and sealing by the notary of his certification that the testament was duly
acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses can not be said to violate the rule that
testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim puts
it, "uno eodem die ac tempore in eadem loco", and no reversible error was committed by the Court in so holding. It is
noteworthy that Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses
should acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against appellant.

FIRST DIVISION
[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.
DECISION
ESGUERRA, J p:

Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the probate of the last
will and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said
deceased, opposed the allowance of the will (Exhibit "E"), alleging that the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said instrument was executed without the testator having been fully
informed of the contents 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. cdrep
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, 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
arrangements. Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if the notary public were one of the
attesting or instrumental witnesses. For them he would be interested in sustaining the validity of the will as it directly
involves himself and the validity of his own act. It would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in addition, act as a witness to the
execution of the document he has notarized. (Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox,
43 Ill. 130) There are others holding that his signing merely as a notary in a will nonetheless makes him a witness
thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W.
2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee's Estate 160 N. W. 900; 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 in the aforecited cases merely
acted as instrumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary public
acted not only as attesting witness but also as 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 of 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 805 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 that purpose. In the circumstances, the law
would not be duly 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.

[blank]

FIRST DIVISION
[G.R. No. L-37453. May 25, 1979.]
RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
DECISION
GUERRERO, J p:

This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973
in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15, 1964 and
allowed the probate of the last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of
First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have been executed
by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85), having
been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased, and that private respondent, with her husband and children, lived with the
deceased at the latter's residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in
Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It consists of five (5)
pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as follows:
"PATUNAY NG MGA SAKSI
"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at
kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel
Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page),
sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa
harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D.
Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective places of
residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their
signatures also appear on the left margin of all the other pages. The will is paged by typewritten words as follows: "Unang
Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of
each page. prLL
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in
accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her obligations, if
any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother
Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin
na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor,
were bequeathed all properties and estate, real or personal, already acquired, or to be acquired, in her (testatrix's) name,
after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be
the will of the deceased on the following grounds:
1.
that the same is not genuine; and in the alternative
2.
that the same was not executed and attested as required by law;
3.
that, at the time of the alleged execution of the purported will, the decedent lacked testamentary capacity
due to old age and sickness; and in the second alternative
4.
that the purported will was procured through undue and improper pressure and influence on the part of
the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a quo rendered
judgment, the summary and dispositive portions of which read:
"Passing in summary upon the grounds advanced by the oppositor, this Court finds:
"1.
That there is no iota of evidence to support the contention that the purported will of the deceased was
procured through undue and improper pressure and influence on the part of the petitioner, or of some other person for her
benefit;
"2.
That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the
purported will, the deceased lacked testamentary capacity due to old age and sickness;
"3.
That sufficient and abundant evidence warrants conclusively the fact that the purported will of the
deceased was not executed and attested as required by law;
"4.
That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the
purported will allegedly dictated by the deceased, executed and signed by her, and attested by her three attesting
witnesses on April 15, 1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will and testament of the deceased
Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in question was executed and attested as required by law. The Court of
Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holing
that the will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in
the presence of the deceased and of each other as required by law, 2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was
opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their respective Memoranda, 5 and on
August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration
stating that:

"The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will and
testament of Isabel Gabriel was not executed in accordance with law because the same was signed on several occasions,
that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence
of each other.
"The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the
evidence. We have carefully re-examined the oral and documentary evidence of record. There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its
discretion and/or acted without or in excess of its jurisdiction in reversing the findings of fact and conclusions of the trial
court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11,
1973 to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973. Upon consideration of
the allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised being factual and
for insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for Reconsideration
10 which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974. A Reply and
Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I.
The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses were credible
witnesses.
II.
The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution
of the will Exhibit "F", was unexpected and coincidental.
III.
The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV.
The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten
words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present
in the same occasion.
V.
The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso.
VI.
The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not physically
present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya.
VII.
The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as
proof that the will was improperly executed.
VIII.
The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of
witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial court erred in
rejecting said testimonies.
IX.
The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted
and usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X.
The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F",
the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and
content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this jurisdiction,
the factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This
rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista
vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina Roque (L25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: LibLex
". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been wellsettled that the jurisdiction of this Court in cases brought to us from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month
later, this Court, speaking through the then Justice Laurel it was held that the same principle is applicable, even if the
Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a consequent reversal of
its findings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not
reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us particularly
because its premises are borne out by the record or based upon substantial evidence and what is more, when such
findings are correct. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the
Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the
facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the findings of the Court of Appeals
are contrary to that of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven
evidence becomes necessary. The general rule We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the
witnesses must be credible is an absolute requirement which must be complied with before an alleged last will and
testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably
considered. Petitioner contends that the term "credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same
Code. It is further urged that the term "credible" as used in the Civil Code should receive the same settled and well-known

meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wills
with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of
a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a will. These
Articles state:
"Art. 820.
Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb,
and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code.
"Art. 821.
The following are disqualified from being witnesses to a will:
(1)
Any person not domiciled in the Philippines,
(2)
Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as
to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in
Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his
answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or
competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to
the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the witness in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the
witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be
given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for naturalization
must be supported by two character witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the
Philippines for the period of time required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the respondent
that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are
not applicable to instrumental witnesses to wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia,
Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the evidence as found by
the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner
has not pointed to any disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, 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. While the petitioner submits that Article 820 and 821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the term credible
requires something more than just being competent and, therefore, a witness in addition to being competent under Articles
820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and
one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on record to show
that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since
one was a family driver by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano
teacher to a grandchild of the testatrix. But the relation of employer and employee much less the humble social or
financial position of a person do not disqualify him to be a competent testamentary witness. (Molo-Pekson and PerezNable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article
805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that portion of Article
820 which says "may be a witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities
that the word "credible" insofar as witnesses to a will are concerned simply means "competent." Thus, in the case of
Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will must be clearly
and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those
who testify to facts from or upon hearsay." (emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of
the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years or more, and
not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and employee, or being a relative to
the beneficiary in a will, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness must be
credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of
which we may cite:
"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime, or other cause. Historical
Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95
A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).

"Expression 'credible witness' in relation to attestation of wills means 'competent witness'; that is, one competent
under the law to testify to fact of execution of will. Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde,
Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses
means competent; witnesses who, at the time of attesting the will, are legally competent to testify, in a court of justice, to
the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and
not of the time it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competent witnesses that is, such persons
as are not legally disqualified from testifying in courts of justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect
of the particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42."
(Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute,
that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from
the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio
del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a
witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial
courts may allow a person to testify as a witness upon a given matter because he is competent, but may thereafter decide
whether to believe or not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their testimony
to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on
record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words,
the instrumental witnesses must be competent and their testimonies must be credible before the court allows the probate
of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible witnesses", that is, that they have a
good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the
findings of fact of the respondent court in finding that the preparation and execution of the will was expected and not
coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have dictated the
will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in
holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed,
and in holding that the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid down that the findings of fact of
the appellate court are binding and controlling which We cannot review, subject to certain exceptions which We will
consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and
supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the testatrix to the office of
Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution of the will and
that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was
unexpected as there was no prior appointment with him, but he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the
appellate court is amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of the
day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to witness the
making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to
proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office, which
testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained
residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate No. A-5114942
was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued
also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was nothing surprising in
these facts and that the securing of these residence certificates two days and one day, respectively, before the execution
of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses were earlier notified that
they would be witnesses to the execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned
by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that they started from
the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to
Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and
Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the will was
executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he told her
that if she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor
to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician notwithstanding the fact that
he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by
Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit "F", which the petitioner assails
as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the
names of the witnesses and their respective residence certificates) immediately upon their arrival in the law office by
Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he
received such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction for the
respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given immediately to Atty.
Paraiso and that no such list was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on
a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no moment for such
data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses
on April 15, 1961 following the attestation clause duly executed and signed on the same occasion, April 15, 1961. And
since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is
a public document executed and attested through the intervention of the notary public and as such public document is
evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To
contradict all these, there must be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs.
Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were
all present in the same occasion merits Our approval because this conclusion is supported and borne out by the evidence
found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.",
"date issued" and "place issued" the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on
February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the names, residence tax certificate numbers,
dates and places of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty.
Paraiso. Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the
appointment of the appellant Santiago as executrix of the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket
number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him, whereupon
petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or
document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one years old
and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few
weeks after the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the competency of
the respondent appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our
power to revise and review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix
dictated her will without any note or memorandum appears to be fully supported by the following facts or evidence
appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days
before her death. She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree with the respondent Court that the
testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and documentary is,
according to the respondent court, overwhelming that Matilde Orobia was physically present when the will was signed on
April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of
the appellate court is very clear, thus: "On the contrary, the record is replete with proof that Matilde Orobia was physically
present when the will was signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to the child of the
appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia
could not have been present to witness the will on that day is purely conjectural. Witness Orobia did not admit having
given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is highly probable that even if
April 15, 1961 were a Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to
preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on
April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the pages of the
will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment
overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of April 15, 1961 and that
she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of signing because it
preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very purpose
of the attestation clause which is made for the purpose of preserving in permanent form, a record of the facts attending
the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may
still be proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave
undue importance to the picture-takings as proof that the will was improperly executed, We agree with the reasoning of
the respondent court that: "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary to what the
other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at
worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed because what matters here is not the
photographer but the photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya."
Further, the respondent Court correctly held: "The trial court gave undue importance to the picture-takings, jumping

therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria
Gimpaya. These witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their identification
of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross
examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident upon the
insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly
unnecessary if not pointless. What was important was that the will was duly executed and witnessed on the first occasion
on April 15, 1961," and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do
not require picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective
testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said contradictions,
evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter
used by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the type in which the will
was typewritten but which was identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are
indeed unimportant details which could have been affected by the lapse of time and the treachery of human memory such
that by themselves would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs.
dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person will be identical and coinciding
with each other with regard to details of an incident and that witnesses are not expected to remember all details. Human
experience teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long series
of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all
those who witness an incident are impressed in like manner, it is but natural that in relating their impressions, they should
not agree in the minor details; hence the contradiction in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the
respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence presented
in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of
the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts
particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending
witnesses lies peculiarly within the province of trial courts and generally, the appellate court should not interfere with the
same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the
facts and circumstances established in the record. Whereas the appellate court said that "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial
court's conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not
have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a
conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed and that there is nothing in the entire record to support
the conclusion of the court a quo that the will-signing occasion was a mere coincidence and that Isabel Gabriel made an
appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to
reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts. LLpr
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals
is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the petitioner that
among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or
conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a photographer
proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that
on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel
to dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their
correctness; the lawyer then typed the will and after finishing the document, he read it to her and she told him that it was
alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde
Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the document in
the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the
end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel
Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the
bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel
Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony that he had earlier
advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did
not know beforehand the identities of the three attesting witnesses until the latter showed up at his law office with Isabel
Gabriel on April 15, 1961. Atty. Paraiso's claim-which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the date in
question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have
dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner that it
was incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision
under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any

note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said lawyer she had no note or
document. This fact jibes with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was
of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel
Gabriel's wish to be interred according to Catholic rites; the second was a general directive to pay her debts if any; the
third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago
Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee; the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme
situations in which judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when
the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions
enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully supported by the
evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We
discern no misapprehension of facts. The respondent Court's findings of fact are not conflicting. Hence, the wellestablished rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not
be disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without qualification or
reservation. The above holding simply synthesizes the resolutions we have heretofore made in respect to petitioner's
previous assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court
acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings as to call
for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and testament of the deceased
Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record
is unassailable that: "From the welter of evidence presented, we are convinced that the will in question was executed on
April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in
the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after
finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at
the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn
out good. The lawyer told her that this cannot be done because the will was already signed but Isabel Gabriel insisted that
a picture be taken, so a simulated signing was performed during which incident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three
instrumental witnesses who constitute the best evidence of the will-making have testified in favor of the probate of the will.
So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who thereafter notarized it. All
of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses
and the testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule
that the Supreme Court cannot review and revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs
against the petitioner.
SO ORDERED.

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SECOND DIVISION
[G.R. No. L-51546. January 28, 1980.]
JOSE ANTONIO GABUCAN, petitioner-appellant, vs. HON. JUDGE LUIS D. MANTA, JOSEFA G. VDA. DE
YSALINA and NELDA G. ENCLONAR, respondents-appellees.
Ignacio A. Calingin for appellant.
DECISION

AQUINO, J p:
This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a
thirty-centavo documentary stamp.
The Court of First Instance of Camiguin in its "decision" of December 28, 1977 in Special Proceeding No. 41 for
the probate of the will of the late Rogaciano Gabucan, dismissed the proceeding (erroneously characterizes as an
"action").
The proceeding was dismissed because the requisite documentary stamp was not affixed to the notarial
acknowledgment in the will and, hence, according to respondent Judge, it was not admissible in evidence, citing section
238 of the Tax Code, now section 250 of the 1977 Tax Code, which reads:
"SEC. 238.
Effect of failure to stamp taxable document. An instrument, document, or paper which is
required by law to be stamped and which has been signed, issued, accepted, or transferred without being duly stamped,
shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or use in evidence
in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall add his jurat or acknowledgment to any
document subject to documentary stamp tax unless the proper documentary stamps are affixed thereto and cancelled."
The probate court assumed that the notarial acknowledgment of the said will is subject to the thirty-centavo
documentary stamp tax fixed in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of petitioner's manifestation that he had already
attached the documentary stamp to the original of the will, (See Mahilum vs. Court of Appeals, 64 3. G. 4017, 17 SCRA
482, 486.)
The case was brought to this Court by means of a petition for mandamus to compel the lower court to allow
petitioner's appeal from its decision. In this Court's resolution of January 21, 1980 the petition for mandamus was treated
in the interest of substantial and speedy justice as an appeal under Republic Act No. 5440 as well as a special civil action
of certiorari under Rule 65 of the Rules of Court.
We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the
will, there was "no will and testament to probate" and, consequently, the alleged "action must of necessity be dismissed."
What the probate court should have done was to require the petitioner or proponent to affix the requisite thirtycentavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that the non-admissibility of the document, which
does not bear the requisite documentary stamp, subsists only "until the requisite stamp or stamps shall have been affixed
thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in
evidence (Del Castillo vs. Madrilea, 49 Phil. 749) If the promissory note does not bear a documentary stamp, the court
should have allowed plaintiff's tender of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the
holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack of the documentary stamp on a document does not invalidate
such document. See Cia. General de Tabacos vs. Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and Figueroa vs.
Amenabar, 16 Phil. 403, 405-6.)
WHEREFORE, the lower court's dismissal of the petition for probate is reversed and set aside. It is directed to
decide the case on the merits in the light of the parties' evidence. No costs.
SO ORDERED.

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FIRST DIVISION

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.
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.
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 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.
SO ORDERED.

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EN BANC
[G.R. NO. L-26615. APRIL 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR.
JAIME ROSARIO, petitioners, vs. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V and CONSUELO GONZALES VDA. DE PRECILLA, respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND DR.
JAIME ROSARIO, petitioners, vs. HON. CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES VDA. DE PRECILLA, respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S. GONZALES VDA. DE
PRECILLA, petitioner administratrix, vs. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE
MAURICIO, DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO
NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL
ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISO-MANAHAN, oppositorsappellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for respondent Consuelo S. Gonzales Vda. de
Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro Sevilla & Ramon C. Aquino for petitioner
administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion Narciso, et al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants Severina Narciso, et al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositors-appellants Natividad del Rosario
Sarmiento, et al.
DECISION
REYES, J.B.L., J p:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of Manila (in Sp. Proc. No. 62618)
admitting to probate the alleged last will an, testament of the late Gliceria Avelino del Rosario dated 29 December 1960.
G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus filed by certain alleged heirs of said decedent
seeking (1) to compel the probate court to remove Consuelo S. Gonzales-Precilla as special administratrix of the estate,
for conflict of interest, to appoint a new one in her stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in the name of Alfonso Precilla, married to
Consuelo Gonzales y Narciso, and said to be properly belonging to the estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September 1965, leaving no descendents,
ascendants, brother or sister. At the time of her death, she was said to be 90 years old more or less, and possessed of an
estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the deceased, petitioned the Court of
First Instance of Manila for probate of the alleged last will and testament of Gliceria A. del Rosario, executed on 29
December 1960, and for her appointment as special administratrix of the latter's estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee
named in an earlier will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and
legatees in both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus, wards of the deceased
and legatees in the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad
del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five groups of persons all claiming to be relatives of
Doa Gliceria within the fifth civil degree. The oppositions invariably charged that the instrument executed in 1960 was not
intended by the deceased to be her true will; that the signatures of the deceased appearing in the will was procured
through undue and improper pressure and influence the part of the beneficiaries and/or other persons; that the testatrix
did not know the object of her bounty; that the instrument itself reveals irregularities in its execution, and that the
formalities required by law for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the deceased, joined the group of Dr.
Jaime Rosario in registering opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the estate. After the parties were duly heard, the
probate court, in its order of 2 October 1965, granted petitioner's prayer and appointed her special administratrix of the
estate upon a bond for P30,000.00. The order was premised on the fact the petitioner was managing the properties
belonging to the estate even during the lifetime of the deceased, and to appoint another person as administrator or co
administrator at that stage of the proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate court an urgent motion to require
the Hongkong & Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September
1965. The court denied this motion on 22 October 1965 for being premature, it being unaware that such deposit in the
name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and children, Antonio Jesus de Praga,
Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the court for the immediate removal of the special administratrix. It
was their claim that the special administratrix and her deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del
Rosario to execute a simulated and fraudulent deed of absolute sale dated 10 January 1961 allegedly conveying unto
said spouses for the paltry sum of P30,000.00 ownership of 3 parcels of land and the improvements thereon located on

Quiapo and San Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors contended that since it is the
duty of the administrator to protect and conserve the properties of the estate, and it may become necessary that, an
action for the annulment of the deed of sale land for recovery of the aforementioned parcels of land be filed against the
special administratrix, as wife and heir of Alfonso Precilla, the removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order directing the Special Administratrix to
deposit with the Clerk of Court all certificates of title belonging to the estate. It was alleged that on 22 October 1965, or
after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as special administratrix of the
estate of the deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for the
issuance of new copies of the owner's duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the properties constituting the estate. The motion having
been granted, new copies of the owner's duplicates of certificates appearing the name of Gliceria del Rosario (among
which were TCT Nos. 66201, 66202 and 66204) were issued on 15 November 1965. On 8 December 1965, according to
the oppositors, the same special administratrix presented to the Register of Deeds the deed of sale involving properties
covered by TCT Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on 10 January 1961 in favor
of Alfonso Precilla, and, in consequence, said certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will of Gliceria A. del Rosario (Exhibit
"D"). In declaring the due execution of the will, the probate court took note that no evidence had been presented to
establish that the testatrix was not of sound mind when the will was executed; that the fact that she had prepared an
earlier will did not, prevent her from executing another one thereafter; that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page does not render the latter invalid; that, the erasures and
alterations in the instrument were insignificant to warrant rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors are even indicative of their truthfulness. The probate court,
also considering that petitioner had already shown capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the oppositors appealed, the case being docketed in this
Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors' motion of 14 December 1965 for the
removal of the then special administratrix, as follows:
"It would seem that the main purpose of the motion to remove the special administratrix and to appoint another
one in her stead, is in order that an action may be filed against the special administratrix for the annulment of the deed of
sale executed by the decedent on January 10, 1961. Under existing documents, the properties sold pursuant to the said
deed of absolute sale no longer forms part of the estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants that an action be filed by them to annul the aforesaid
deed absolute sale, it is not necessary that the special administratrix be removed and that another one be appointed to file
such action. Such a course of action would only produce confusion and difficulties in the settlement of the estate. The
movants may file the aforesaid proceedings, preferably in an independent action, to secure the nullity of the deed of
absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the titles in the name of the
decedent, the same was also denied, for the reason that if the movants were referring to the old titles, they could no
longer be produced, and if they meant the new duplicate copies thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because they were already cancelled and other certificates were
issued in the name of Alfonso Precilla. This order precipitated the oppositors' filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs. Hon. Judge Conrado M. Vasquez, et al.), which was given due
course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the oppositors requested the Register of
Deeds of Manila to annotate a notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of
Alfonso Precilla. And when said official refused to do so, they applied to the probate court (in Sp. Proc. No. 62618) for an
order to compel the Register of Deeds to annotate a lis pendens notice in the aforementioned titles contending that the
matter of removal and appointment of the administratrix, involving TCT Nos. 81735, 81736, and 81737, was already
before the Supreme Court. Upon denial of this motion on 12 November 1966, oppositors filed another mandamus action,
this time against the probate court and the Register of Deeds. The case was docketed and given due course in this Court
as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the order allowing the probate of
the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix, Gliceria A. del Rosario, during her
lifetime, executed two wills: one on 9 June 1956 consisting of 12 pages and written in Spanish, a language that she knew
and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and acknowledged before
notary public Jose Ayala; and another dated 29 December 1960, consisting of 1 page and written in Tagalog, witnessed by
Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary public Remigio M.
Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses Decena, Lopez and Rosales
uniformly declared that they were individually requested by Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of Doa Gliceria A. del Rosario; that they arrived at the house of the
old lady at No. 2074 Azcarraga, Manila, one after the other, in the afternoon of 29 December 1960; that the testatrix at the
time was apparently of clear and sound mind, although she was being aided by Precilla when she walked; 3 that the will,
which was already prepared, was first read "silently" by the testatrix herself before she signed it; 4 that he three witnesses
thereafter signed the will in the presence of the testatrix and the notary public and of one another. There is also testimony
that after the testatrix and the witnesses to the will acknowledged the instrument to be their voluntary act and deed, the
notary public asked for their respective residence certificates which were handed to him by Alfonso Precilla, clipped
together; 5 that after comparing them with the numbers already written on the will, the notary public filled in the blanks in
the instrument with the date, 29 January 1960, before he affixed his signature and seal thereto. 6 They also testified that
on that occasion no pressure or influence has been exerted by any person upon the testatrix to execute the will.
Of course, the interest and active participation of Alfonso Precilla in the signing of this 1960 will are evident from
the records. The will appeared to have been prepared by one who is not conversant with the spelling of Tagalog words,

and it has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7 The witnesses to
the will, two of whom are fellow Visayans, 8 admitted their relationship or closeness to Precilla. 9 It was Precilla who
instructed them to go to the house of Gliceria del Rosario on 29 December 1960 to witness an important document, 10
and who took their residence certificates from them a few days before the will was signed. 11 Precilla had met the notary
public and witnesses Rosales and Lopez at the door of the residence of the old woman; he ushered them to the room at
the second floor where the signing of the document took place; 12 then he fetched witness Decena from the latter's
haberdashery shop a few doors away and brought him to, the house the testatrix. 13 And when the will was actually
executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the correctness of the probate court's ruling,
maintain that on 29 December 1960 the eyesight of Gliceria del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very material and illuminating. Said
ophthalmologist, whose expertise was admitted by both parties, testified, among other things, that when Doa Gliceria del
Rosario saw him for consultation on 11 March 1960 he found her left eye to have cataract (opaque lens), 15 and that it
was "above normal in pressure", denoting a possible glaucoma, a disease that leads to blindness 16 As to the conditions
of her right eye, Dr. Tamesis declared:
"Q
But is there anything here in the entry appearing in the other documents Exhibits 3-B, 3-C and 3-D from
which you could inform the court as to the condition of the vision of the patient as to the right eve ?
"A
Under date of August 30, 1960, is the record of refraction. that is setting of glass by myself which showed
that the right eye with my prescription of glasses had a vision of 2 over 60 (20/60) and for the left eye with her correction
20 over 300 (20/300).
"Q
In layman's language, Doctor, what is the significance of that notation that the right had a degree of 20
over 60 (20/60)?
"A
It meant that eye at least would be able to recognize objects or persons at a minimum distance of twenty
feet.
"Q
But would that grade enable the patient to read print?
"A
Apparently that is only a record for distance vision, for distance sight, not for near."
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of the left eye of the decedent at the Lourdes Hospital
on 8 August 1960; as of 23 August 1960, inspite of the glasses her vision was only "counting fingers," 17 at five feet. The
cross-examination of the doctor further elicited the following responses:
"Q
After she was discharged from the hospital you prescribed lenses for her, or glasses?
"A
After her discharge from the hospital, she was coming to my clinic for further examination and then
sometime later glasses were prescribed.
xxx
xxx
xxx
"Q
And the glasses prescribed by you enabled her to read, Doctor?
"A
As far as my record is concerned, with the glasses for the left eye which I prescribed the eye which I
operated she could see only forms but not read. That is on the left eye.
"Q
How about the right eye?
"A
The same, although the vision on the right eye is even better than the left eye." (pages 34. 85. t.s.n.,
hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29 November 1965 certifying that Gliceria
del Rosario was provided with aphakic lenses and "had been under medical supervision up to 1963 with apparently good
vision", the doctor had this to say:
"Q
When yon said that she had apparently good vision you mean that she was able to read?
"A
No, not necessarily, only able to go around, take care of herself and see. This I can tell you, this report
was made on pure recollections and I recall she was using her glasses although I recall also that we have to give her
medicines to improve her vision, some medicines to improve her identification some more.
xxx
xxx
xxx
"Q
What about the vision in the right eve, was that corrected by the glasses?
"A
Yes, with the new prescription which I issued on 80 August 1960. It is in the clinical record.
"Q
The vision in the right eye was corrected?
"A
Yes That is the vision for distant objects."
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand
knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by
cataract patients), her vision remained mainly for viewing distant objects and not for reading print. Thus, the conclusion is
inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29
December 1960, Gliceria del Rosario was incapable f reading, and could not have read the provisions of the will
supposedly signed by her on 29 December 1960. It is worth noting that the instrumental witnesses stated that she read
the instrument "silently" (t.s.n., pages 164-165). which is a conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D",
acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and acknowledgment
were crammed together into a single sheet of paper, to much so that the words had to be written very close on the top,
bottom and two sides of the paper, leaving no margin whatsoever; the word "and" had to be written by the symbol "&",
apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Doa
Gliceria. Further, typographical errors like "HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for "acknowledge'', remained uncorrected, thereby
indicating that execution thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one's worldly possessions should be embodied in an informal and untidily
written instrument; or that the glaring spelling errors should have escaped her notice if she had actually retained the ability
to read the purported will and had done so. The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that its admission to probate was erroneous and
should be reversed.

That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks
shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1",
in no way proves; that she was able to read a closely typed page, since the acts shown do not require vision at close
range. It must be remembered that with the natural lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by her. Neither is the signing of checks (Exhibits "G" to
"G-3") by her indicative of ability to see at normal reading distances. Writing or signing of one's name, when sufficiently
practiced, becomes automatic, so that one need only to have a rough indication of the place where the signature is to be
affixed in order to be able to write it. Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O",
et seq., reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance: the
signatures in the checks are written far above the printed base, lines, and the names of the payees as well as the
amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much firmer and more fluid hand
than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant
oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the
provisions of Article 808 of the Civil Code.
"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."
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), 18 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. That the aim of the law is to insure that the dispositions of the will are properly
communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to the latter, not only once but twice, by two different persons,
and that the witnesses have to act within the range of his (the testator's) other senses. 19
In connection with the will here in question, there is nothing in the records to show that the above requisites have
been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its
due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against the denial by the probate court of
their petition for the removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the estate of the deceased
Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors' petition was based allegedly on the existence in the special administratrix of an interest adverse
to that of the estate. It was their contention that through fraud her husband had caused the deceased Gliceria del Rosario
to execute a deed of sale, dated 10 January 1961, by virtue of which the latter purportedly conveyed unto said Alfonso D.
Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3 parcels of land and the improvements thereon,
assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966 (Annex "P", Petition) reasoned out
that since the properties were already sold no longer form part of the estate. The conflict of interest would not be between
the estate and third parties, but among the different claimants of said properties, in which case, according to the court, the
participation of the special administratrix in the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned was precisely the validity of the
conveyance or sale of the properties. In short, if proper, the action for annulment would have to be undertaken on behalf
of the estate by the special administratrix, affecting as it does the property or rights of the deceased. 20 For the rule is
that only where there is no special proceeding for the settlement of the estate of the deceased may the legal heirs
commence an action arising out of a right belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and validity of the deed of sale, an ordinary and
separate action would have to be instituted, the matter not falling within the competence of the probate court. 22
Considering the facts then before it, i.e., the alleged deed of sale having been executed by Gliceria del Rosario on 10
January 1961, when she was already practically blind; and that the consideration of P30,000.00 seems to be
unconscionably small for properties with a total assessed value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs of Alfonso Precilla. And the administratrix, being the widow
and heir of the alleged transferee, cannot be expected to sue herself in an action to recover property that may turn out to
belong to the estate. 22 Not only this, but the conduct of the special administratrix in securing new copies of the owner's
duplicates of TCT Nos. 66201, 66202, and 66204, without the court's knowledge or authority, and on the pretext that she
needed them in the preparation of the inventory of the estate, when she must have already known by then that the
properties covered therein were already "conveyed" to her husband by the deceased, being the latter's successor, and
having the contract bind the land through issuance of new titles in her husband's name cannot but expose her to the
charge of unfitness or unsuitableness to discharge the trust, justifying her removal from the administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors' motion to require the Hongkong and
Shanghai Bank to report all withdrawals made against the funds of the deceased after 2 September 1965 and (2) the
motion for annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex "H") that it could not have taken action on
the complaint against the alleged withdrawals from the bank deposits of the deceased, because as of that time the court
had not yet been apprised that such deposits exist. Furthermore, as explained by the special administratrix in her pleading
of 30 October 1965, the withdrawals referred to by the oppositors could be those covered by checks issued in the name of
Gliceria del Rosario during her lifetime but cleared only after her death. That explanation, which not only appears plausible
but has not been rebutted by the petitioners-oppositors, negates any charge of grave abuse in connection with the
issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the register of deeds of the province in which the property is
situated, if the action affects "the title or the right of possession of (such) real property." 23 In the case at bar, the pending
action which oppositors seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is the mandamus
proceeding filed in this Court (G.R. No. L-26615). As previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the motion for the removal of Consuelo Gonzales Vda. de
Precilla as special administratrix of the estate of the late Gliceria del Rosario. In short, the issue in controversy there is

simply the fitness or unfitness of said special administratrix to continue holding the trust; it does not involve or affect at all
the title to, or possession of, the properties covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of
such case (L-26615) is not an action that can properly be annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to probate the alleged 1960 will of
Gliceria A. del Rosario is hereby reversed and set aside. The petition in G.R. No. L-26615 being meritorious, the appealed
order is set aside and the court below is ordered to remove the administratrix, Consuelo Gonzales Vda. de Precilla, and
appoint one of the heirs intestate of the deceased Doa Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties allegedly sold by her to the late Alfonso D.
Precilla. And in Case G.R. No. L-26864, petition is dismissed. No costs.

SECOND DIVISION
G.R. No. 108921 April 12, 2000
JOSEFINA VILLANUEVA-MIJARES, WALDETRUDES VILLANUEVA-NOLASCO, GODOFREDO VILLANUEVA,
EDUARDO VILLANUEVA, GERMELINA VILLANUEVA-FULGENCIO, MILAGROS VILLANUEVA-ARQUISOLA, and
CONCEPCION MACAHILAS VDA. DE VILLANUEVA, petitioners,
vs.
THE COURT OF APPEALS, PROCERFINA VILLANUEVA, PROSPERIDAD VILLANUEVA, RAMON VILLANUEVA,
ROSA VILLANUEVA, VIRGINIA NEPOMUCENO, PAULA NEPOMUCENO, TARCELA NEPOMUCENO, MERCEDES
VILLANUEVA, ADELAIDA VILLANUEVA, APARICION VILLANUEVA, JOSEFINA VILLANUEVA, BETTY
VILLANUEVA, BOBBY VILLANUEVA, MERLINDA VILLANUEVA, MORBINA VILLANUEVA, FLORITA VILLANUEVA,
DIONISION VILLANUEVA, and EDITHA VILLANUEVA, respondents.
QUISUMBING, J.:
This petition for review seeks the reversal of the Decision 1 of the respondent Court of Appeals promulgated on September
28, 1992, in CA G.R. CV No. 27427, as well as of the Resolution promulgated on February 4, 1993, which denied the
petitioners' Motion for Reconsideration.
Petitioners Josefina Villanueva-Mijares, Waldetrudes Villanueva-Nolasco, Godofredo Villanueva, Eduardo Villanueva,
Germelina Villanueva-Fulgencio, and Milagros Villanueva-Arquisola are the legitimate children of the late Leon Villanueva.
Petitioner Concepcion Macahilas vda. de Villanueva is his widow. Leon was one of eight (8) children of Felipe Villanueva,
predecessor-in-interest of the parties in the present case.
Private respondents were the plaintiffs-appellants in CA G.R. No. 27427, entitled "Procerfina Villanueva, et al., v. Josefina
Villanueva-Nolasco, et al." They are related by blood to the petitioners as descendants of Felipe.
The pertinent facts of the case are not in dispute.
During his lifetime, Felipe, owned real property described as follows:
A parcel of land, situated at Estancia, Kalibo, Capiz. Bounded on the N. by the Provincial Road to New
Washington; on the S. by Nicanor Gonzales; on the E. by Nicanor Gonzales; and on the W. by Leon
Barrientos and Mauricio Parojinog, containing an area of fifteen thousand three hundred thirty-six
(15,336) square meters, more or less declared in the name of Felipe Villanueva under Tax Declaration
No. 3888 and assessed at Three Hundred Ten (P310.00) Pesos. 2
Felipe begot the following legitimate children: Simplicio, Benito, Leon, Nicolasa, Eustaqio, Camila, Fausta, and Pedro.
Upon Felipe's death, ownership of the land was passed on to his children.
In 1952, Pedro, one of the children of Felipe got his share equivalent to one-sixth (1/6) of the property with an area of one
thousand nine hundred five (1,905) square meters and had it declared under his name pursuant to Tax Declaration No.
8085.
The remaining undivided portion of the land is described as follows:
A parcel of land situated at Estancia, Kalibo, Capiz, bounded on the N. by the National Road to New
Washington; on the S. by Nicanor Gonzales; on the E. by Pedro Villanueva and on the W. by Leon
Barrientos and Mauricio Parojinog, containing an area of eleven thousand nine hundred fifty-nine (11,959)
square meters, more or less and declared under Tax Declaration No. 8086 and assessed at Three
Hundred Thirty-Three Pesos and Forty Centavos (P333.40). 3
This was held in trust by Leon for his co-heirs. During Leon's lifetime, his co-heirs made several seasonable and lawful
demands upon him to subdivide and partition the property, but for one reason or another, no subdivision took place.
After the death of Leon in August 1972, private respondents discovered that the shares of four of the heirs of Felipe,
namely, Simplicio, Nicolasa, Fausta and Maria Baltazar, spouse of Benito, was purchased by Leon as evidenced by a
Deed of Sale executed on August 25, 1946 but registered only in 1971. It also came to light that Leon had, sometime in
July 1970, executed a sale and partition of the property in favor of his own children, herein petitioners. By virtue of such
Deed of Partition, private respondents had succeeded in obtaining Original Certificate of Title (OCT) No. C-256. On April
25, 1975, petitioners managed to secure separate and independent titles over their pro-indiviso shares in their respective
names.
Private respondents then filed a case for partition with annulment of documents and/or reconveyance and damages with
the Regional Trial Court of Kalibo, Aklan, docketed as Civil Case No. 2389. Private respondents contended that the sale in
favor of Leon was fraudulently obtained through machinations and false pretenses. Thus, the subsequent sale of the lot by
Leon to his children was null and void despite the OCT in his favor.

Petitioners, for their part, claimed that the sale by Simplicio, Fausta, Nicolasa, and Maria Baltazar was a valid sale; that
private respondent Procerfina even signed as an instrumental witness to the Deed of Sale; that Maria Baltazar, widow of
Benito, as administrator of her husband's estate, had the right to sell the undivided share of Benito; that the basis for the
issuance of the OCT in Land Registration Case No. K-231 was the sale by his co-heirs to Leon; that the order of default
issued in Land Registration Case No. K-231 was against the whole world; that prescription had set in since they had been
in possession of the property in the concept of owners thereof since August 29, 1946, up to the present; and that private
respondents were estopped since no trust relationship existed between the litigants.
After trial, the Regional Trial Court of Kalibo rendered its decision in Civil Case No. 2389, declaring "the defendants the
legal owners of the property in question in accordance with the individual titles issued to them." 4
The trial court also declared plaintiffs' action already barred by res judicata.
Dissatisfied, herein private respondents elevated the case to the Court of Appeals. Their appeal was docketed as CA-G.R.
CV No. 27427.
On appeal, the private respondents conceded the right of Simplicio, Nicolasa, and Fausta to sell their respective shares
but disputed the authority of Maria Baltazar to convey any portion of her late husband's estate, since the latter was his
capital and did not form part of the conjugal property. 5
On September 28, 1992, respondent appellate court rendered its decision, the dispositive portion of which reads:
WHEREFORE, the appealed judgement is REVERSED. Appellants Procerfina Villanueva, Prosperidad
Villanueva, Ramon Villanueva and Rosa Villanueva are hereby adjudged rightful co-owners pro indiviso of
an undivided one-sixth (1/6) portion of the property litigated upon (Lot 3789, Psc-36), as heirs of their late
father, Benito Villanueva; and the appellees are hereby ordered to execute a registerable document
conveying to the said appellants their one-sixth (1/6) portion of subject property.
Conformably, the parties concerned are required to agree on a project of partition, for the segregation of
the one-sixth (1/6) portion adjudicated to said appellants; otherwise, should they fail to do so within a
reasonable time, any interested party may seek relief from the trial court a quo, which is hereby directed,
in that eventuality, to cause the partition of the subject property in accordance with pertinent rules, and
this pronouncement. Costs against appellee.
SO ORDERED. 6
The Court of Appeals ruled that under the Old Civil Code and applicable jurisprudence, Maria Baltazar had no authority to
sell the portion of her late husband's share inherited by her then minor children since she had not been appointed their
guardian. Respondent court likewise declared that as far as private respondents Procerfina, Prosperidad, Ramon and
Rosa, were concerned, the Deed of Sale of August 25, 1946 was "unenforceable." 7
Respondent appellate court also ruled that the prescription period had not run in favor of Leon since private respondents
had always known that Leon was the administrator of the estate. It was only in 1975 when their suspicion were aroused
and they inquired about the status of the land. 8
Dissatisfied with the ruling of the respondent appellate court, herein petitioners now come before this Court assigning the
following errors:
I
IN NOT HOLDING THAT THE PRIVATE RESPONDENTS ARE NOT BARRED BY LACHES, ESTOPPEL
IN PAIS, AND RES JUDICATA, THE RESPONDENT, THE COURT OF APPEALS, HAS DECIDED A
QUESTION OF SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE
APPLICABLE DECISIONS OF THIS HONORABLE COURT, AMONG THEM, TIJAM V. SIBONGHANOY,
NO. L-21450, APRIL 15, 1968, 23 SCRA 29.
II
IN HOLDING THAT THE DEED OF SALE DATED AUGUST 25, 1946, EXHIBIT "I", ALSO EXHIBIT "C", IS
UNENFORCEABLE AGAINST THE PRIVATE RESPONDENTS FOR BEING AN UNAUTHORIZED
CONTRACT, THE RESPONDENT, THE COURT OF APPEALS, HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THIS HONORABLE COURT, THE WEIGHT OF THE EVIDENCE BEING THAT MARIA
BALTAZAR, THE PRIVATE RESPONDENTS' MOTHER, HAD THE AUTHORITY TO CONVEY THE ONESIXTHS (1/6) SHARE OF THE LATE BENITO VILLANUEVA TO THE PETITIONERS, AND/OR THAT
HER ACT WAS SUBSEQUENTLY RATIFIED BY THE PRIVATE RESPONDENTS.
III
IN GRANTING THE APPEAL AND CONSEQUENTLY, IN REVERSING THE COURT A QUO, THE
RESPONDENT, THE COURT OF APPEALS, HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY

PROBABLY NOT IN ACCORD WITH THE LAW OR APPLICABLE DECISIONS OF THIS HONORABLE
COURT. 9
The grounds relied upon by the petitioners may be subsumed in two issues, to wit:
(1) Whether or not the appellate court erred in failing to declare action by the private respondents to recover the property
in question barred by laches, estoppel, prescription, and res judicata; and
(2) Whether or not the appellate court erred in declaring the Deed of Sale of August 25, 1946 unenforceable against the
private respondents for being an unauthorized contract.
Petitioners citing Tijam v. Sibonghanoy, 23 SCRA 29 (1968), contend that the action of the private respondents was
already barred by laches. 10 They argue that private respondents filed their action more than twenty-nine (29) years too
late, counted from the date Maria Baltazar signed the questioned Deed of Sale of August 26, 1948.
Laches is negligence or omission to assert a right within a reasonable time, warranting the presumption that the party
entitled to assert it has either abandoned or declined to assert it. 11 Its essential elements are: (1) conduct on the part of
the defendant, or of one under whom he claims, giving rise to the situation complained of; (2) delay in asserting
complainant's right after he had knowledge of the defendant's conduct and after he has an opportunity to sue; (3) lack of
knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit;
and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant. 12
In Chavez v. Bonto-Perez, 242 SCRA 73, 80 (1995), we said there is no absolute rule on what constitutes laches. It is a
creation of equity and applied not really to penalize neglect or sleeping upon one's rights but rather to avoid recognizing a
right when to do so would result in a clearly inequitable situation. The question of laches, we said, is addressed to the
sound discretion of the court and each case must be decided according to its particular circumstances.
At the time of signing of the Deed of Sale of August 26, 1948, private respondents Procerfina, Prosperidad, Ramon and
Rosa were minors. They could not be faulted for their failure to file a case to recover their inheritance from their uncle
Leon, since up to the age of majority, they believed and considered Leon their co-heir and administrator. It was only in
1975, not in 1948, that they became aware of the actionable betrayal by their uncle. Upon learning of their uncle's actions,
they filed an action for recovery. Hence, the doctrine of stale demands formulated in Tijam cannot be applied here. They
did not sleep on their rights, contrary to petitioners' assertion. Under the circumstances of the instant case, we do not think
that respondent appellate court erred in considering private respondents' action. The action was not too late.
Furthermore, when Felipe Villanueva died, an implied trust was created by operation of law between Felipe's children and
Leon, their uncle, as far as the 1/6 share of Felipe. Leon's fraudulent titling of Felipe's 1/6 share was a betrayal of that
implied trust.
Petitioners aver that the failure of Maria Baltazar's children to bringing their action in 1969 when they had reached the age
of majority meant that they had impliedly ratified the Deed of Sale and are now estopped to assail the same. They
erroneously relied on Asiatic Integrated Corporation v. Alikpala, 67 SCRA 60 (1975). In that case, payments made by
Asiatic pursuant to the terms of the contract accrued to the benefit of the City without protest on the part of the municipal
board, such that the Board already acquiesced to the validation of the contract. In the instant case, there is no implied
ratification, no benefit accruing to the children of Maria Baltazar.
Neither is the action barred by prescription In Vda. de Cabrera v. Court of Appeals, 267 SCRA 339, 353 (1997), and Sta.
Ana, Jr. v. Court of Appeals, 281 SCRA 624, 629 (1997), we held that an action for reconveyance of a parcel of land
based on implied or constructive trust prescribes in 10 years, the point of reference being the date of registration of the
deed or the date of the issuance of the certificate of title of the property. Here the questioned Deed of Sale was registered
only in 1971. Private respondents filed their complaint in 1975, hence well within the prescriptive period.
Petitioners assert that the disputed property is registered. Relying on Cachero v. Marzan, 196 SCRA 601, 610 (1991), and
Cureg v. Intermediate Appellate Court, 177 SCRA 313, 320 (1989), where we held that a land registration case is an
action in rem binding upon the whole world, and considering that the private respondents failed to object to the registration
of the realty in question, then res judicata had set in. True, but notwithstanding the binding effect of the land registration
case upon the private respondents, the latter are not deprived of a remedy. While a review of the decree of registration is
no longer available after the expiration of the one-year period from entry thereof, an equitable remedy is still available.
Those wrongfully deprived of their property may initiate an action for reconveyance of the properly. 13
As to the second issue, we find no reversible error committed by the respondent appellate court in declaring the Deed of
Sale unenforceable on the children of Maria Baltazar. As correctly pointed out by the Court of Appeals, there was no
question as to the sale of the shares of Simplicio, Nicolasa, and Fausta, to their brother Leon. But not so with Maria
Baltazar concerning the share of her late husband, Benito, to Leon. Under the law then prevailing at the time of the
demise of her spouse, her husband's share in the common inheritance pertained to her minor children who were her late
husband's heirs and successors-in-interest.
As explained by the Court of Appeals:
Since the late Benito Villanueva, son of Felipe Villanueva, died before the effectivity of Republic Act No.
386, otherwise known as the New Civil Code of the Philippines, the old Civil Code governs the distribution
and disposition of his intestate estate. Thereunder, the legitime of the children and descendants consisted

of two-thirds (2/3) of the hereditary estate of the father and of the mother (first paragraph, Article 808);
and the widower or widow, as the case may be, who, at the time of death of his or her spouse, was not
divorced or if divorced, due to the fault of the deceased spouse, was entitled to a portion in usufruct equal
to that which pertains as legitime to each of the legitimate children or descendants not bettered (Article
834, 1st paragraph.) 14
In addition, under the jurisprudence prevailing at the time of Benito's death, the rule was that while parents may be the
guardians of their minor children, such guardianship did not extend to the property of their minor children. 15 Parents then
had no power to dispose of the property of their minor children without court authorization. 16 Without authority from a
court, no person could make a valid contract for or on behalf of a minor or convey any interest of a minor in land. 17
Admittedly, Maria Baltazar showed no authorization from a court when she signed the Deed of Sale of August 26, 1948,
allegedly conveying her children's realty to Leon.
While it is true that the Court of Appeals upheld the validity of the Deed of Sale, it nevertheless correctly ruled that the sale
by Maria Baltazar of her children's share was invalid. From its execution up to the time that an action for reconveyance
was instituted below by the private respondents and to the present, the Deed of Sale of August 26, 1948, remained
unenforceable as to private respondents Procerfina, Ramon, Prosperidad, and Rosa. Article 1529 of the old Civil Code, 18
which was the prevailing law in 1948 and thus governed the questioned Deed of Sale, clearly provided that a contract is
unenforceable when there is an absence of authority on the part of one of the contracting parties. Interpreting Article 1529
of the old Civil Code, the Court has ruled that the nullity of the unenforceable contract is of a permanent nature and it will
exist as long the unenforceable contract is not duly ratified. The mere lapse of time cannot give efficacy to such a contract.
The defect is such that it cannot be cured except by the subsequent ratification of the unenforceable contract by the
person in whose name the contract was executed. 19 In the instant case, there is no showing of any express or implied
ratification of the assailed Deed of Sale by the private respondents Procerfina, Ramon, Prosperidad, and Rosa. Thus, the
said Deed of Sale must remain unenforceable as to them.1wphi1.nt
WHEREFORE, the petition is DENIED for lack of merit, and the assailed judgment of the Court of Appeals is AFFIRMED.
Let the records of this case be remanded to the lower court for execution of the judgment. Costs against petitioners.
SO ORDERED.