, 90
Phil. 489
Republic of the Philippines
SUPREME COURT Manila
EN BANC
November 29, 1951
PARAS, C.J.:
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:
In testimony, whereof, we sign this statement, this the third day of January,
one thousand nine hundred forty three, (1943) A.D.
The will appears to have been signed by Atty. Florentino Javier who wrote the
name of Antero Mercado, followed below by "A reugo del testator" 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 judgement
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.
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
the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.
EN BANC
GODDARD, J.:
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.
The evidence of record established the fact that Leoncia Tolentino, assisted
by Attorney Almario, placed her thumb mark on each and every age of time
questioned will and the 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 for 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 testratrix 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.
EN BANC
CARSON, J.:
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.
Q.
1641
A.
1641
Q.
1641
A.
1641
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.
1641
State positively whether Julio Javellana did or did not sign as a
witness to the will.
A.
1641
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.
1641
A.
1641
Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.
Q.
1641
A.
1641
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.
1641
State positively whether Julio moved his hand with the pen as
if for the purpose of signing, or whether he was signing
A.
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:
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 finding 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,
had assembled for the purpose of executing 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
the 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 lay 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.
EN BANC
CARSON, J.:
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.
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.
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.
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.
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?
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.
On the other hand, the petitioner maintains that Article 805 of the Civil Code
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).
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.
449).
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.
SO ORDERED.
EN BANC
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.
order, the oppositors appealed directly to this Court, the amount involved
being over P200,000.00, on the ground that the same is contrary to law and
the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte
died in the City of Manila on September 12, 1958; that on June 2, 1956, the
late Josefa Villacorte executed a last will and testament in duplicate at the
house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila,
published before and attested by three instrumental witnesses, namely:
attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that
the will was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong, Notary Public
in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and
signing of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of
the said three instrumental witnesses to the execution of the decedent's last
will and testament, attorneys Torres and Natividad were in the Philippines at
the time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will
was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter
also testified upon cross examination that he prepared one original and two
copies of Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page, it does
not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the
amended and supplemental petition and marked as Exhibit "A-1" is signed by
the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the
original of the will and its duplicate were subscribed at the end and on the left
margin of each and every page thereof by the testatrix herself and attested
and subscribed by the three mentioned witnesses in the testatrix's presence
and in that of one another as witnesses (except for the missing signature of
attorney Natividad on page three (3) of the original); that pages of the
original and duplicate of said will were duly numbered; that the attestation
clause thereof contains all the facts required by law to be recited therein and
is signed by the aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix that the attestation clause is
in a language also known to and spoken by the witnesses; that the will was
executed on one single occasion in duplicate copies; and that both the
original and the duplicate copies were duly acknowledged before Notary
Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the
original, admits that he may have lifted two pages instead of one when he
signed the same, but affirmed that page three (3) was signed in his presence.
We have examined the record and are satisfied, as the trial court was, that
the testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",
respectively) of the will spontaneously, on the same in the presence of the
three attesting witnesses, the notary public who acknowledged the will; and
Atty. Samson, who actually prepared the documents; that the will and its
duplicate were executed in Tagalog, a language known to and spoken by both
the testator and the witnesses, and read to and by the testatrix and Atty.
Fermin Samson, together before they were actually signed; that the
attestation clause is also in a language known to and spoken by the testatrix
and the witnesses. The opinion of expert for oppositors, Mr. Felipe Logan, that
the signatures of the testatrix appearing in the duplicate original were not
written by the same had which wrote the signatures in the original will leaves
us unconvinced, not merely because it is directly contradicted by expert
Martin Ramos for the proponents, but principally because of the paucity of
the standards used by him to support the conclusion that the differences
between the standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides those affixed to
the original of the testament (Exh. A); and we feel that with so few standards
the expert's opinion and the signatures in the duplicate could not be those of
the testatrix becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into account the
advanced age of the testatrix, the evident variability of her signatures, and
the effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted
and questioned signatures does not appear reliable, considering the standard
and challenged writings were affixed to different kinds of paper, with different
surfaces and reflecting power. On the whole, therefore, we do not find the
testimony of the oppositor's expert sufficient to overcome that of the notary
and the two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that
some heirs are more favored than others is proof of neither (see In re Butalid,
10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216).
Diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property and that
they should respect the distribution made in the will, under penalty of
forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged
litigation which, as shown by ordinary experience, often results in a sizeable
portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of
Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are
mutually repugnant and exclude each other; their joining as grounds for
opposing probate shows absence of definite evidence against the validity of
the will.
On the question of law, we hold that the inadvertent failure of one witness to
affix his signature to one page of a testament, due to the simultaneous lifting
of two pages in the course of signing, is not per se sufficient to justify denial
of probate. Impossibility of substitution of this page is assured not only the
fact that the testatrix and two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests
to the full observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
"witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely
through pure oversight is shown by his own testimony as well as by the
duplicate copy of the will, which bears a complete set of signatures in every
page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the
time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied. Thus, despite the literal tenor of the law, this Court has
held that a testament, with the only page signed at its foot by testator and
witnesses, but not in the left margin, could nevertheless be probated
(Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for
the correlative lettering of the pages of a will, the failure to make the first
page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81
Phil. 429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud and bid
faith but without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they
opposed probate of original because it lacked one signature in its third page,
it is easily discerned that oppositors-appellants run here into a dilemma; if
the original is defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is probatable. If the
original is valid and can be probated, then the objection to the signed
duplicate need not be considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent and not
intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing
is made that new interests were involved (the contents of Exhibit A and A-1
are admittedly identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment deprived
the appellants of any substantial right, and we see no error in admitting the
amended petition.
PUNO, J.:
This is a petition for review by certiorari of the Decision, dated March 27,
1990, of the Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate
of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died
on March 20, 1976.
The records show that decedent left behind nine thousand pesos (P9,000.00)
worth of property. She also left a Last Will and Testament, dated October 30,
1972, and a Codicil thereto, dated July 24, 1973. Both documents contained
the thumbmarks of decedent. They were also signed by three (3) attesting
witnesses each, and acknowledged before Tomas A. Tolete, then the Municipal
Judge and Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its allowance
before the RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency
of the proceedings, and was duly substituted by petitioner. Private
respondents, relatives of decedent, opposed the Petitioner filed by Calde, on
the following grounds: that the will and codicil were written in Ilocano, a
dialect that decedent did not know; that decedent was mentally
incapacitated to execute the two documents because of her advanced age,
illness and deafness; that decedents thumbmarks were procured through
fraud and undue influence; and that the codicil was not executed in
accordance with law.
On June 23, 1988, the trial court rendered judgment on the case, approving
and allowing decedents will and its codicil. The decision was appealed to and
reversed by the respondent Court of Appeals. It held:
. . . (T)he will and codicil could pass the safeguards under Article 805 of the
New Civil Code but for one crucial factor of discrepancy in the color of ink
when the instrumental witnesses affixed their respective signatures. When
subjected to cross-examination, Codcodio Nacnas as witness testified as
follows:
Yes, sir.
Q
And when you were all signing this Exhibit "B" and "B-1", Exhibit "B"
and "B-1" which is the testament was passed around all of you so that each
of you will sign consecutively?
Yes, sir.
Q
After Calibia Lingdan Bulanglang was made to sign I withdraw the
question. How did Calibia Lingdan Bulanglang sign the last will and
testament?
A
She asked Judge Tolete the place where she will affix her thumbmark so
Judge Tolete directed her hand or her thumb to her name.
Q
After she signed, who was the second to sign allegedly all of you there
present?
Jose Becyagen.
With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?
Ballpen.
Q
And after Jose Becyagen signed his name with the ballpen, who was
the next to sign?
Me, sir.
Q
And Jose Becyagen passed you the paper and the ballpen, Exhibit "B"
and "B-1" plus the ballpen which used to sign so that you could sign your
name, is that correct?
Yes, sir.
Q
And then after you signed, who was the next to sign the document,
Exhibit "B" and "B-1"?
Hilario Coto-ong.
Q
So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1"
and the ballpen so that he could sign his name as witness to the document, is
it not?
Yes, sir.
Q
And that is the truth and you swear that to be the truth before the
Honorable Court?
ATTY. DALOG:
COURT:
Yes, sir.
Q
When you signed Exhibit "D" and "D-1", did you all sign with the same
ballpen?
One.
Thus, this appeal by petitioner who now puts in issue the correctness of the
respondent courts conclusion that both decedents will and codicil were not
subscribed by the witnesses in the presence of the testator and of one
another, contrary to the requirements of Article 805 of the Civil Code. He
contends that:
1.
THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE
SPECULATION OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF
JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND
THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY
HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;
2.
THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE
VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT
AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG.
The question in the case at bench is one of fact: whether or not, based on the
evidence submitted, respondent appellate court erred in concluding that both
decedents Last Will and Testament, and its Codicil were subscribed by the
instrumental witnesses on separate occasions. As a general rule, factual
findings of the Court of Appeals are considered final and conclusive, and
cannot be reviewed on appeal to this court. In the present instance, however,
there is reason to make an exception to that rule, since the finding of the
respondent court is contrary to that of the trial court, viz.:
It is accepted that there are three sources from which a tribunal may properly
acquire knowledge for making its decisions, namely: circumstantial evidence,
testimonial evidence, and real evidence or autoptic proference. Wigmore
explains these sources as follows:
If, for example, it is desired to ascertain whether the accused has lost his
right hand and wears an iron hook in place of it, one source of belief on the
subject would be the testimony of a witness who had seen the arm; in
believing this testimonial evidence, there is an inference from the human
assertion to the fact asserted. A second source of belief would be the mark
left on some substance grasped or carried by the accused; in believing this
circumstantial evidence, there is an inference from the circumstance to the
thing producing it. A third source of belief remains, namely, the inspection by
the tribunal of the accuseds arm. This source differs from the other two in
omitting any step of conscious inference or reasoning, and in proceeding by
direct self-perception, or autopsy.
It is unnecessary, for present purposes, to ask whether this is not, after all, a
third source of inference, i.e., an inference from the impressions or
perceptions of the tribunal to the objective existence of the thing perceived.
The law does not need and does not attempt to consider theories of
psychology as to the subjectivity of knowledge or the mediateness of
perception. It assumes the objectivity of external nature; and, for the
purposes of judicial investigation, a thing perceived by the tribunal as
existing does exist.
There are indeed genuine cases of inference by the tribunal from things
perceived to other things unperceived as, for example, from a persons
size, complexion, and features, to his age; these cases of a real use of
inference can be later more fully distinguished . . . But we are here concerned
with nothing more than matters directly perceived for example, that a
person is of small height or is of dark complexion; as to such matters, the
perception by the tribunal that the person is small or large, or that he has a
dark or light complexion, is a mode of acquiring belief which is independent
of inference from either testimonial or circumstantial evidence. It is the
tribunals self-perception, or autopsy, of the thing itself.
From the point of view of the litigant party furnishing this source of belief, it
may be termed Autoptic Proference. 3 (Citations omitted.)
Neither did respondent court err when it did not accord great weight to the
testimony of Judge Tomas A. Tolete. It is true that his testimony contains a
narration of how the two testamentary documents were subscribed and
attested to, starting from decedents thumbmarking thereof, to the alleged
signing of the instrumental witnesses thereto in consecutive order.
Nonetheless, nowhere in Judge Toletes testimony is there any kind of
explanation for the different-colored signatures on the testaments.
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of
respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071
disallowing the Last Will and Testament, and the Codicil thereto, of the
decedent Calibia Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against
petitioner.
SO ORDERED.
ESGUERRA, J.:
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.
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.
Admittedly, there are American precedents holding that notary public may, in
addition, act as a witness to the executive of the document he has notarized.
(Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
130). There are others holding that his signing merely as notary in a will
nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911,
Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v.
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not
decisive of the issue herein because the notaries public and witnesses
referred to aforecited cases merely acted as instrumental, subscribing
attesting witnesses, and not as acknowledging witnesses. He the notary
public acted not only as attesting witness but also acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code which reads:
ART. 806.
Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a
copy of the will or file another with the office of the Clerk of Court. [Emphasis
supplied]
To allow the notary public to act as third witness, or one the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of
Article 80 be requiring at least three credible witnesses to act as such and of
Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before
the notary public for or that purpose. In the circumstances, the law would not
be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
and the probate of the last will and testament of Valente Z. Cruz (Exhibit "E")
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.
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court
of First Instance of Cebu seeking the probate of his last will and testament.
The probate court set the petition for hearing on August 20, 1979 but the
same and subsequent scheduled hearings were postponed for one reason to
another. On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court. 3 On February 25, 1981, Benoni
Cabrera, on of the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the estimated value of which
was P24,000.00, and he was so appointed by the probate court in its order of
March 6, 1981. 4
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
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:
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
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.
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.
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
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 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
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:
This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . . 29
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:
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
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
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.
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.
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 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.
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).
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.
"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
(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.
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana Roxas
de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid compliance
with the Article 810 of the Civil Code which reads:
ART. 810.
A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in the execution
of holographic Wills are strictly construed.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the manner
of execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)
xxx
xxx
xxx
... The law has a tender regard for the will of the testator expressed in his last
will and testament on the ground that any disposition made by the testator is
better than that which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon the presumed will
of the decedent.
xxx
xxx
xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the objective or
purpose sought to be accomplished by such requisite is actually attained by
the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled
that:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. ...
We have carefully reviewed the records of this case and found no evidence of
bad faith and fraud in its execution nor was there any substitution of Wins
and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question
as to its genuineness and due execution. All the children of the testatrix
agree on the genuineness of the holographic Will of their mother and that she
had the testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because the date "FEB./61 " appearing on
the holographic Will is not sufficient compliance with Article 810 of the Civil
Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
SO ORDERED.
April 5, 1990
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 8102 of the New Civil
Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to
Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the fishpond
located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property and
assignment share of ENRICA LABRADOR, also their sister, and the boundary
in the West is the sea, known as the SEA as it is, and the boundary on the
NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise is
also their brother. That because it is now the time for me being now ninety
three (93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us, meaning with
their two mothers, hence there shall be no differences among themselves,
those among brothers and sisters, for it is I myself their father who am
making the apportionment and delivering to each and everyone of them the
said portion and assignment so that there shall not be any cause of troubles
or differences among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that
should be followed and complied with in order that any differences or troubles
may be forestalled and nothing will happen along these troubles among my
children, and that they will be in good relations among themselves, brothers
and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of Bayog,
it is their right to get if they so need, in order that there shall be nothing that
anyone of them shall complain against the other, and against anyone of the
brothers and sisters.
And that referring to the other places of property, where the said property is
located, the same being the fruits of our earnings of the two mothers of my
children, there shall be equal portion of each share among themselves, and
or to be benefitted with all those property, which property we have been able
to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which
I am here hereof manifesting of the truth and of the fruits of our labor which
their two mothers, I am signing my signature below hereof, and that this is
what should be complied with, by all the brothers and sisters, the children of
their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1wphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said fishpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself
and executed in the hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence,
the will is more of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the date of
the execution of the will is plain from the tenor of the succeeding words of
the paragraph. As aptly put by petitioner, the will was not an agreement but
a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10,
1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec. 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for appellant
in the instant case.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on
August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and the will was written voluntarily.
The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.[4]
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition[5] to the petition for probate, alleging that the holographic will
was a forgery and that the same is even illegible. This gives an impression
that a third hand of an interested party other than the true hand of Matilde
Seo Vda. de Ramonal executed the holographic will.
after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper
pressure and influence on the part of the beneficiaries, or through fraud and
trickery.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the
latter lived with her in her parents house for eleven (11) years, from 1958 to
1969. During those eleven (11) years of close association with the deceased,
she acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals
from her various tenants of commercial buildings, and the deceased always
issued receipts. In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried personal letters
of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the deceased
and that all the dispositions therein, the dates, and the signatures in said will,
were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings
and documents signed by the deceased in connection with the intestate
proceedings of her late husband, as a result of which he is familiar with the
handwriting of the latter. He testified that the signature appearing in the
holographic will was similar to that of the deceased, Matilde Seo Vda. de
Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified
that she processed the application of the deceased for pasture permit and
was familiar with the signature of the deceased, since the deceased signed
documents in her presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar with the signature of the
deceased. She testified that the signature appearing in the holographic will is
the true and genuine signature of Matilde Seo Vda. de Ramonal.
Instruction
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no
longer around.
"August 30,1978
Mama
As can be seen, the law foresees the possibility that no qualified witness may
be found (or what amounts to the same thing, that no competent witness
may be willing to testify to the authenticity of the will), and provides for
resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be
ignored that the requirement can be considered mandatory only in case of
ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(art.10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove that the
date, text, and signature on the holographic will were written entirely in the
hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures
in the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of
the Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in the will is the genuine
signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word shall connotes a mandatory order. We have
ruled that shall in a statute commonly denotes an imperative obligation and
is inconsistent with the idea of discretion and that the presumption is that the
word shall, when used in a statute is mandatory.[11]
Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to
give effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.
It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of the testator.
In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with
your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what
was your occupation or how did Matilde Vda de Ramonal keep herself busy
that time?
A. Collecting rentals.
Q. From where?
xxx
A. Yes, sir.[13]
xxx
Q. Showing to you the receipt dated 23 October 1979, is this the one you are
referring to as one of the receipts which she issued to them?
A. Yes, sir.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
A. Yes, sir.
A. In handwritten.[14]
xxx
A. Posting records.
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.[15]
xxx
Q. You testified that at the time of her death she left a will. I am showing to
you a document with its title tugon is this the document you are referring to?
A. Yes, sir.
A. My aunt.
What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not
declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the
fact that the will was not found in the personal belongings of the deceased
but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the
late Matilde Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
A. I.
A. Sorry, yes.
Q. And when did you come into possession since as you said this was
originally in the possession of your mother?
A. 1985.[17]
xxx
Q. Now, Mrs. Binanay was there any particular reason why your mother left
that will to you and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she
died.
Q. Advice of what?
In her testimony it was also evident that Ms. Binanay kept the fact about the
will from petitioners, the legally adopted children of the deceased. Such
actions put in issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seo Vda. de Ramonal.
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is
that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely
and she could go to her building to collect rentals, is that correct?
A. Yes, sir.[19]
xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that
there are retracings in the word Vda.?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde
is continued towards letter D.
A. Yes, sir.
A. Yes, sir.[20]
xxx
Q. Now, that was 1979, remember one year after the alleged holographic will.
Now, you identified a document marked as Exhibit R. This is dated January
8,1978 which is only about eight months from August 30,1978. Do you notice
that the signature Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and
you just tried to explain yourself out because of the apparent inconsistencies?
Q. Now, you already observed this signature dated 1978, the same year as
the alleged holographic will. In exhibit I, you will notice that there is no
retracing; there is no hesitancy and the signature was written on a fluid
movement. x x x And in fact , the name Eufemia R. Patigas here refers to one
of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but in
the handwriting themselves, here you will notice the hesitancy and tremors,
do you notice that?
A. Yes, sir.[21]
Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the services
if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then
to her transactions.
A. After my college days I assisted her in going to the bank, paying taxes and
to her lawyer.
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
xxx
So, the only reason that Evangeline can give as to why she was familiar with
the handwriting of the deceased was because she lived with her since birth.
She never declared that she saw the deceased write a note or sign a
document.
xxx
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?
xxx
Q. You said after becoming a lawyer you practice your profession? Where?
Q. When you said assisted, you acted as her counsel? Any sort of counsel as
in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under
the court before.[26]
xxx
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.[27]
xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427
what were the other assistance wherein you were rendering professional
service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.[28]
xxx
A. I think this signature here it seems to be the signature of Mrs. Matilde vda
de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal,
can you tell the court whose signature is this?
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you
tell the court whose signature is that?
Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they are
similar.[29]
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda
de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda
de Ramonal?
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature because
it is similar to the signature of the project of partition which you have made?
A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals allowed the will
to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson,[31]
ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,[32] we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. 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.
The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased. In
the testimony of Ms. Binanay, she revealed that the will was in her possession
as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by
her during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay
to compare the documents which contained the signature of the deceased
with that of the holographic will and she is not a handwriting expert. Even the
former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,[33]
and the signatures in several documents such as the application letter for
pasture permit dated December 30, 1980,[34] and a letter dated June 16,
1978,[35] the strokes are different. In the letters, there are continuous flows
of the strokes, evidencing that there is no hesitation in writing unlike that of
the holographic will. We, therefore, cannot be certain that the holographic will
was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners
to adduce evidence in support of their opposition to the probate of the
holographic will of the deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.