AGAPITA N.

CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of
First Instance of Cebu, and MANUEL B. LUGAY, respondents.
Civil Code Provisions:

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them. (n)
Art. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the Office of the Clerk of Court
FACTS:
1. The only question presented for determination, on which the decision of this case hinges,
is whether the supposed Last Will and Testament of Valente Z. Cruz (Cruz) was executed
in accordance with:
Art. 805- which states at at least three credible witnesses must attest and subscribe
to the will and
Art. 806- requiring the testator and the witnesses to acknowledge the will before a
notary public.
2. Of the three instrumental witnesses on the supposed Last Will and Testament of Cruz,
one of them, Atty. Angel Teves (Teves), acted also as the notary public before whom the
will was supposed to have been acknowledged. The petitioner argues that as a result
thereof, the will has only two witnesses who appeared before the notary public to
acknowledge the will.
3. The respondent, Lugay, who is supposed to execute the will, stated that there was
substantial compliance with the legal requirement of three attesting witnesses, even if one
of them acted as a notary public based on American jurisprudence.
ISSUE: Can the notary public be considered as the third attesting witness?
HELD: No. The probate of the Last will and Testament of Cruz is declared not valid and
set aside.
1. The notary public cannot acknowledge before himself his having signed the will.
If the third witness is the notary public himself, he would have to avow, assent or
admit as 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.
2. The function of a notary public is to guard against any illegal or immoral
arrangements. That would be defeated if he was also the attesting witness. He
would be interested in sustaining the validity of the will, as it directly involves
himself and the validity of his own act. It would place him in an inconsistent
position and the very purpose of the acknowledgment, which is to minimize fraud.
3. American jurisprudence cannot be used here for we are in Philippine jurisdiction.
In the U.S., the notary public and witnesses referred to in several jurisprudence
merely acted as instrumental, subscribing or attesting witnesses and not as
acknowledging witnesses. Here, the notary public acted not only as attesting
witness but also as acknowledging witness.
4. In allowing the notary public to act as third witness, or one of the attesting and
acknowledging witness, would have the effect of only two attesting witnesses to
the will which is violative of Art. 805 requiring at least 3 witnesses and Art. 806
which requires the testator and the required number of witnesses to appear before
the notary public to acknowledge the will.