LEE v TAMBAGO A.C. No.

5281, 12 February 2008 544 SCRA 393 Lee explains the reason for the stringent formalities prescribed by law in the making of a notarial will. It is disturbing that in this decision, the court ruled that the non-notation of the residence certificates of the notarial witnesses and/or the use of the testators expired residence certificate are sufficient to invalidate a will. Corona, J.: In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charfed respondent Atty. Regino B. Tanbago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. In his complaint, complainant averred that his father, the decedent Vicente Lee Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution. In the said will, the decedent supposedly bequeathed his entire estate to his wide Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half siblings of complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965. Complainant, however, pointed out that the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]. Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits. Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives office of the National Commission for Culture and the Arts (NCCA). In this connection, the certification of the chief of the archives division dated September 19, 1999 stated x x x. Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was not a legitimate son of Vicente Lee Sr. and that the last will and testament was validly executed and actually notarized by respondent per affidavit of Cloria Nebato, common-law wife of Vicente Lee Sr. and corroborated by

the joint affidavit of the children of Vicente Lee Sr., namely Elena N. Lee and Vicente N. Lee. x x. x x x

In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics x x x. Thus, the investigating commissioner of the IBP commission on Bar Discipline recommended the suspension of respondent for a period of three months. x x x

We affirm with modification. A will is 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. A will may be either notarial or holographic. The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wils is to close the door on bad faith and fraud, to avoid substitution of wills and testaments, and to guarantee their truth and authenticity. A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void. This is consonance with the rule that acts executed against the privisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. The Civil Code likewise rquires that a will must be acknowledged before a notary public by the testator and the witnesses. The importance of this requirement is highlighted by the fact tha it was segregated from the other requirements under Article 805 and embodied in a distinct and separate provision. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involces an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed. Ths acknowledgment in a notarial will has two-fold purpose: (1) to safeguard the testators wishes long after his demise, and (2) to assure that his estate is administered in the manner that he intends it to be done. A cursory examination of the acknowledgment of the will in question shows that this

particular rquirement was neither strictly or substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old rsidence certificate in the same acknowledgment ws a clear breach of the law. These omissions by respondent invalidate the will. As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held in Santiago v Rafanan: The Notarial law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax) and to enter its number, place of issue and date as part of such certification. These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents. A notary public, especially a alwyer, is bound to strictly observe these elementary requirements. x x x

be said that the decision of the RTC is one for the books. This case also highlights the fundamental difference between a jurat and an acknowledgment, and based on the distinction, the Court held that a notarial will that is not acknowledged before a notary public is void, even if it was sworn to before a notary public. Tinga, J.: The core of this petition is a highly defective notarial will purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognitition to the due execution of this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code. A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause isnot signed by the instrumental witnesses is fatally defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all three defects is just aching for judicial rejection. There is a distinct and consequential reson the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful copliance with all the detailed requisites under Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills that they be acknowledged before a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions a to its legitimacy. The case stems from a petition for probated filed on 10 April 19894 with the Regional Trial court (RTC) of Manila. Thepetition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the counsin of the decedent. The will, consisting of two(2) pages and written in the vernacular Pilipino, read in full: HILING HABILIN NI EUGENIA E. IGSOLO

In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of otht eh old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo. x x x

Puno (C.J., Chairperson), Sandoval-Gutierrez, Azcuna and Leonardo-de Castro, JJ., concur. AZUELA v COURT OF APPEALS G.R. No. 122880, 12 April 2006 487 SCRA 119 Of note is the decision of the RTC which admitted the will to probate notwithstanding the defects thereof (no signature of witnesses at the bottom of the attestation clause, no signature of the testator on the left margin of the second page of the will, the failure of the attestation clause to state the number of pages used upon which the will was written, and the lack of acknowledgment). As to the missing signature of the witnesses at the bottom of the attestation clause, the RTC ignore the ruling in Cagro v Cagro (although arguably the ruling in Cagro has a very strong dissenting opinion). As regards the missing number of pages in the attestation clause the RTC invoked the doctrine of liberal interpretation but conveniently ignored the conditions laid down in the case of Rodelas. As regards the missing acknowledgement, the RTC ignored the ruling in Carcia v Gatchalian. It can well

SA NGALAN NG MAYKAPAL, AMEN. AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pag-iisip, pag-unawa at memoria ay nag-hahayad na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento. Una Hinihiling kp na ako ay mailibing sa Sementerio del Norte, La

Loma sang-ayon sa kaugalian at patakaran ng simbahang katoliko at ang tagapag-ingat (Executor) ng habiling ito ay magtatayo ng bantayog upang sibling ala-ala sa akin ng aking pamilya at kaibigan; Pangalawa Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na kakatirik sa lote numero 28, block 24 at nakapangalan sa Pechaten Kroporasyon, gayon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San diego St., Lot 42. Block 24 Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito at walang pasubalit at kondiciones; Pangatlo - Na ninunumbrahan ko si VART PAGUE na siyang magpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya. Aking nilagdaan ang Huling Habilin na ito ditto sa Maynila ika 10 ng Hunyo, 1981. (Sgd.) EUGENIA E. IGSOLO (Tagapagmana) PATUNAY NG MGA SAKSI Ang kasulatang ito, na bunubuo ng __ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-1o ng Hunyo 1981, at nilagdaan ng nasabing tagapagmana sa ilalim bf kasulatang nabanggit at sa kaliwangn panig ng lahat at bawat isang dahon, sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi at lumadga sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatang ito. EUGENIA E. IGSOLO address: 500 San Diego St. Sampaloc, Manila, Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981 QUIRINO AGRAVA address: 1228-int. 3,m Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981

LAMBERTO C. LEANO address: Avenue 2, Block 7, Lot 61, San Gabriel, G.M.A, Cavite, Res. Cert. No. A-7668277 issued at Carmona, Cavite On Feb 7, 1981 JUANITO ESTRERA address: City Court Compount, City of Manila Res. Cert No. A574829 Issued at Manila on March 2, 1981 Nilagdaan ko at ninotario ko ngayon 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila (Sgd.) PETRONIO Y. BAUTISTA Notario Publico Until Dec. 31, 1981 PTR-152041 1/2/81, Manila TAN # 1437-977-8 Doc. No. 1232; Page No. 86; Book No. 43; Series of 1981. The three named witnesses to the will affised their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to the designated executor Vart Prague. The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of the 12 legitimate heirs of the decedent. Geralda Castillo claimed that the will is a forgery, and that the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioners right to occupy the properties of the decedent. It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.

`Oppositor Gerlada Castillo also argued that the will wsa not executed and attested to in accordance with law. She pointed out that decedents signature did not appear on the second page of the will, and the will was not property acknowledged. These twin arguments are among the central matters to this petition. After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1982. The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano and Juanito Estrada. The RTC also called to fore the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom of expressing his last wishes; and from this perspective, rebutted oppositors arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedon in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgment, this Court has noted that at the end of the will after the signature of the testatris, the following is made under the sub-title Patunay Ng Mga Saksi: x x x

contains only the last portion of the attestation clause and acknowledgment isnot a fatal defect. As regards the oppositors assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the genuineness of the signature of the testatrix and the due execution of the will. x x x In sa Decision dated 17 August 1995, the Court of Apppeals reversed the trial court and ordered the dismissal of the petition for probate. The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of probate. Hence the present petition. Petitioner argues that the requirement under Article 805 of the Civil Code that the number of pages used in a notarial will be stated in the attestation clause is merely directory, rather than mandatory, and this susceptible to what he termed as the substantial compliance rule. x x x

The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies. As admitted by petitioner himseld, the attestation clause fails to state the number of pages of the will. There was an incomplete attempt to comply with this requisite, as space having been alloted for the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left incomplied with. The Court of Appeals pounced onthis defect in reversing the trial court, citing in the process Uy Coque v Navas L. Sioca and In re: Will of Andrada. In Uy Coque, the Court noted that among the defects of the will in question ws the failure of the attestation clause to state the number of pages contained in the will. In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly relevant to this day: The purpose of requiring the number of sheets to be stated in the attestation clause is obvious: the document might easily be so prepared that the removal of a sheet would completely change the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the testator and witnesses in the margin, a matter attended withmuch greater difficulty. The case of In Re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to

The aforequoted declaration comprises the attestation clause and the acknowledgment and is considered by this Court as a substantial compliance with the requirements of the law. On the oppositors contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witneses on the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfied the purpose of identification and attestation of the will. With regard to the oppositors argument that the will was not numbered correlatively in letters placed on the upper part of each page and that the attestation did not state the number of pages thereof, it is worthy tonote that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation clause and acknowledgment. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin of the second page, which

declare unanim[ity] upon the point that the defect pointed out in the attesting clause is fatal. It was further observed that it cannot be delied that the x x x requirement affords additional security against the danger that the will may be tampered with; and as the Legislature has seen fit to prescribe this requirement, it must be considered material. Against these cited cases, petitioner cites Singson v Florentino and Taboada v Hon. Rosal, wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval: Even a cursory examination of the will (Exhibit D), will readily show that the attestation clause does not state the number of pages used upon which thewill is written. Hence the Will is void and undeserving of probate. We are not impervious of the Decisions of the Supreme court inManuel Singson vesus Emilia Florentino, et al., 92 Phil 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195, to the effect that a will may still be valid even if the attestation clause does not contain the number of pages used upon which the will is written. However, the Decisions of the Supreme Court are not applicable in the aforementioned appeal at bench. This is so because, in the case of Manuel Singson versus Emilia Florentino, et a., supra, although the attestation in the subject will did not state the number of pages used in the will, however, the same was found in the last part of the body of the will: x x x

We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. x x x The acknowledgment itself states that this Last Will and Testament consists of two pates, including this page, However, in the appeal at bench, the number of pages used in the will is not stated in any part of the will. The will does not even contain any notarial acknowledgment wherein the number of pages of the will should be stated. ` Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirements of wills was Section 618 of the Code of Civil Procedure. Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618. However, the enactment of the Civil code in 1950 did put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation is concerned, thatmay vary from the philosophy that governed these two cases. Article 809 of the Civil Code states: x x x. Caneda v Court of Appeals features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of the attestation clause in wills. x x x However, the Code Commission opted to recommend a more liberal construction through the substantial compliance rule under Artifle 809. A cautionary note was struck though Justice J.B.L. Reyes as to how Article 809 should be applied: x x x The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself; whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itseld can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Secton 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against the forgery or intercalation of notarial wills. Compliance with these requirements, however, picayune in impression, affords the

The ratio decidendi of these cases seems to be that the attestation clause must containa 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 thuis 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 pure technical considerations. In Apolonio Taboada versus Hon. Avelino Rosal, et al., supra, the notarial ackowledgment in the Will states the number of pages used in the: x x x

public a high degree of comfort that the testator himself or herself had decided to convey property post mortem in the manner established in the will. The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, if for the fruition of the testators incontestable desires, and not for the indulgent admission of wills to probate. The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection. For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left=hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. x x x

ko at ninotario ko ngayon 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila. By bo manner of contemplation can these words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby by the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed. It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and sworn to by the executor. x x x. Yet even if we consider what was affxed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement in Article 806 is that the will be acknowledged and not berely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allwong for the criminal prosecution of persons to participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of a certain mindset in making the testamentary dispositions to those persons he/she had designated in the will. It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn to before a notary public. x x x

The Court today reiterates the continued efficacy of Cagro. x x x The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of thewill. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signature cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the valie of the instrumental witnesses signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause. x x x

All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED. Quisumbing (Chairperson), Carpio and Carpio-Morales, concur.

Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that every will must be acknowledged before a notary public by the testator and the witnesses has also not been complied with. x x x. In lien of an acknowledgment, the notary public, Petronio Y. Bautista, wrote Nilagdaan

SAMANIEGO-CELADA v ABENA G. R. No. 145545, 30 June 2008 556 SCRA 569 Samaniego holds that an error in the number of pages of the will as stated in the

attestation clause is not material to invalidate the will. Quisumbing, J.: x x x

Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while respondent was the decedents lifelong companion since 1929. On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents, grandparents and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay, Manuelita Samaniego-Sajonia, Feliza Samaniego, and petitioner. Before her death, Margarita executed a Last Will and Testament on February 2, 1987 where she bequeathed one-half of her undivided share of a real property located at Singalong x x x to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third portion each. She likewise bequeathed one-half of her undivided share of a real property located at San Antonio Village, Makati x x x to respondent, Isabelo M. Abena and Amanda M. Abena in equal shares or one-third portion each. Margarita also left all her personal properties to respondent who she likewise designated as sole executor of her will. On August 11, 1987, petitioner filed a petition for letter of administration of the estate of Margarita before the RTC of Makati. x x x. On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as the executor of the will. x x x. Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated October 13, 2000, affirmed in toto the RTC ruling. x x x. x x x

the reason that its attestation clause states that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only because the attestation clause is not a part of the notarial will, the same is not accurate. While it is true that the attestation clause is not a part of the will, the court, after examining the totality of the will, is of the considered opinion that error in the number of pages of the will as stated in the attestation clause is not material to invalidate the subject will. It must be noted that the subject instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the pages. The error must have been brought about by the honest belief that the will is the whole instrument consisting of three (3) pages inclusive of the attestation clause and the acknowledgment. The position of the court is in consonance with the doctrine of liberal interpretation enunciated in Article 809 of the Civil Code which reads: In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. x x x

Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are not compulsory heirs of the decedent under Article 887 of the Civil Code and as the decedent validly disposed of her properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedents estate. WHEREFORE, the petition ie DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756 is AFFIRMED. SO ORDERED. Carpio-Morales, Tinga, Velasco, Jr., and Brion, JJ., concur.

Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply with the formalities required by law x x x. After careful consideration of the parties contentions, we rule in favor of respondent. x x x

ACAIN v INTERMEDIATE APPELLATE COURT No. L-72706, 27 October 1987 155 SCRA 100 Acain resolved once and for all the issue as to whether or not a surviving spouse could be preterited. This issue was not definitively answered in Balanay. In addition, Acain resolved that an adopted child may be preterited. This issue was not resolved in Maninang. The foregoing notwithstanding, the Court did not explain the reason why an adopted child (while given the same

Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioners arguments lack basis. The RTC correctly held: x x x

Anent the contestants submission that the will is fatally defective for

rights and obligations as a legitimate child under the provisions of P.D. 603) could be preterited. It must be noted that given the said provisions, the adopted child is not entitled to the right of representation, which is available to a legitimate child. It would seem, however, that with the provisions of the Family Code, specifically on the status of an adopted child, the preterition of an adopted child finds greater support. Paras, J.: The antecedents of the case, based on a summary of the Intermediate Appellate Court, now Court of Appeals, are as follows: On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591-A-CEB, on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya with a translation in English submitted by petitioner without objection raised by private respondents. The will contained provisions on burial rights, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided: THIRD. All my shares that I may receive from our properties, house, lands, and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN, Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceases me, all the money, properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given by me to his children, namely: Anita, Constantino, Concepcion, Quirina, Laura, Flores, Antonio and Jose, all surnamed Acain. Obviously, Segundo predeceased Nemesio. Thus, it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591-A-CEB. After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of the deceased and the latter's widow, Rosa Diongson vda. de Acain) filed a motion to dismiss on the following grounds: (1) the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir, and (3) the widow and the adopted daughter have been preterited. Said motion was denied by the trial judge. After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985.

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591-A-CEB. His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent court's decision on December 18, 1985. Respondents' Comments was filed on June 6, 1986. x x x

Petitioner raises the following issues: x x x

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate; (C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line" and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs; x x x

The pivotal issue in this case is whether or not private respondents have been preterited. x x x

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v Nuguid, 17 SCRA 450 (1966)) Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil Code).However, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner. Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopted and makes the adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.

Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado, mejora o donacion" (Manresa, as cited in Nuguid v Nuguid, supra; Maninang v Court or Appeals, 114 SCRA 478 (1982)). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs - without any other testamentary disposition in the will - amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v Nuguid, supra). No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy (Neri v Akutin, 74 Phil 185 (1943)) except that proper legacies and devises must, as already stated above, be respected. x x x

all, there exists a justiciable controversy crying for solution. x x x

In Cayetano v Leonidas, supra, one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent judge allowed the probate of the will. The court held that as on its face the will appeared to have preterited the petitioner, the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v Court of appeals, supra; Nuguid v Nuguid, supra). In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591-A-CEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited. It was denied by the trial court in an order dated January 21, 1985 for the reason that the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case. A subsequent motion for reconsideration was denied by the trial court on February 15, 1985. For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added anxiety. The trial court have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v Leonidas, supra; Nuguid v Nuguid, supra). The remedies of certiorari and prohibition were properly availed of by private respondents. x x x

Special Proceedings No. 591-A-CEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this state of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v Nuguid, 17 SCRA 449 (1966); Sumilang v Ramagosa, supra; Maninang v Court of Appeals, 114 SCRA 478 (1982); Cayetano v Leonidas, 129 SCRA 522 (1984); and Nepomuceno v Court of Appeals, 139 SCRA 206 (1985)). The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v Court of Appeals, supra). In Nuguid v Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preterition. The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal, the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said: We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of the respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED. SO ORDERED. Teehankee (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. G.R. No. 176943 October 17, 2008 DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD, petitioners, vs. ZENAIDO ALUAD, respondent.

DECISION CARPIO MORALES, J.: Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin). Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself. 1 On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos"2 (Deed of Donation) in favor of petitioners mother Maria3 covering all the six lots which Matilde inherited from her husband Crispin. The Deed of Donation provided: That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the DONEE the property above-described, to become effective upon the death of the DONOR, but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect; Provided, however, that anytime during the lifetime of the DONOR or anyone of them who should survive, they could use[,] encumber or even dispose of any or even all of the parcels of land herein donated.4 (Emphasis and underscoring supplied) On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matildes name. On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property.5 Subsequently or on January 14, 1992, Matilde executed a last will and testament, devising Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent. Matilde died on January 25, 1994, while Maria died on September 24 of the same year. 7 On August 21, 1995, Marias heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint,8 for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and damages against respondent, alleging: That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x; That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased mother, Maria Aluad who is the sole and only daughter of Matilde Aluad[.]9 To the complaint respondent alleged in his Answer.10
6

That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from Matilde Aluad. These two lots are in his possession as true owners thereof. 11 (Underscoring supplied) Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence12 to which it annexed an Amended Complaint13 which cited the donation of the six lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted the motion and admitted the Amended Complaint.14 Respondent filed an Amended Answer15 contending, inter alia, that the Deed of Donation is forged and falsified and petitioners change of theory showed that "said document was not existing at the time they filed their complaint and was concocted by them after realizing that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be established by them";16 and that if ever said document does exist, the same was already revoked by Matilde "when [she] exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots without any opposition from Maria Aluad."17 The trial court, by Decision18 of September 20, 1996, held that Matilde could not have transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed of Donation. Thus it disposed: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre; 2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs; 3. Ordering the defendant to pay the plaintiffs: a. Thirty thousand pesos (P30,000.00) as attorneys fees; b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully paid; c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and d. The costs of the suit. Defendants counterclaim is ordered dismissed for lack of merit. SO ORDERED.19 On petitioners motion, the trial court directed the issuance of a writ of execution pending appeal.20 Possession of the subject lots appears to have in fact been taken by petitioners.

By Decision21 of August 10, 2006, the Court of Appeals reversed the trial courts decision, it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code, reading: Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators 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 that 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. While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not so declare with respect to Lot No. 674, as Matildes last will and testament had not yet been probated. Thus the Court of Appeals disposed: WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and damages is REVERSED and SET ASIDE. A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the possession of the said lot to the defendant-appellant. Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorneys fees and litigation expenses. Costs against plaintiffs-appellees. SO ORDERED.22 (Emphasis in the original; underscoring supplied) Their Motion for Reconsideration23 having been denied,24 petitioners filed the present Petition for Review,25 contending that the Court of Appeals erred I

X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS MOTHER IS IN FACT A DONATION MORTIS CAUSA. II X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME. III X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF. IV X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND COST[S] OF SUIT.26 As did the appellate court, the Court finds the donation to petitioners mother one of mortis causa, it having the following characteristics: (1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive; (2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and (3) That the transfer should be void if the transferor should survive the transferee.27 (Emphasis and underscoring supplied) The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners mother during her (Matildes) lifetime. 28 The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should survive, they could use, encumber or even dispose of any or even all the parcels of land herein donated"29 means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other limitations than those established by law is an attribute of ownership. 30 The phrase in the Deed of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves concede that such phrase does not refer to the donee, thus:

x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was executed on 14 November 1981, as her husband Crispin Aluad [] had long been dead as early as 1975.31 The trial court, in holding that the donation was inter vivos, reasoned: x x x The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions, "but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect". When the donor provides that should the "DONEE" xxx die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect" the logical construction thereof is that after the execution of the subject donation, the same became effective immediately and shall be "deemed rescinded and [of] no further force and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor. Understandably, the arrival of this resolutory term or period cannot rescind and render of no further force and effect a donation which has never become effective, because, certainly what donation is there to be rescinded and rendered of no further force and effect upon the arrival of said resolutory term or period if there was no donation which was already effective at the time when the donee died?32 (Underscoring supplied) A similar ratio in a case had been brushed aside by this Court, however, thus: x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos. Petitioners arguments are bereft of merit.33 xxxx x x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated to the donee or independently of, and not by reason of her death, she would not have expressed such proviso in the subject deeds.34 (Underscoring supplied) As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matildes acts of possession as she continued to pay the taxes for the said properties which remained under her name; appropriated the produce; and applied for free patents for which OCTs were issued under her name."35 The donation being then mortis causa, the formalities of a will should have been observed36 but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.37 Further, the witnesses did not even sign the attestation clause38 the execution of which clause is a requirement separate from the subscription of the will and the affixing of signatures on the lefthand margins of the pages of the will. So the Court has emphasized:

x x x Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will from the requisite that the will be "attested and subscribed by [the instrumental witnesses]. The respective intents behind these two classes of signature[s] are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. x x x It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.39 (Emphasis and underscoring supplied) Furthermore, the witnesses did not acknowledge the will before the notary public, 40 which is not in accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary public by the testator and the witnesses. More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each page was not also followed. 41 The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void and transmitted no right to petitioners mother. But even assuming arguendo that the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject of course to the qualification that her (Matildes) will must be probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991. Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeed mortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to them because they had acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since 1978. 43 Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and issues not brought to the attention of the trial court cannot be raised for the first time on appeal.44 For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.45 WHEREFORE, the petition is DENIED.