G.R. No.

L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA

ABELLANA.

LUCIO

BALONAN, petitioner-appellee,

vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.

T.
de
los
Santos
for
appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First
Instance of Zamboanga City admitting to probate
the will of one Anacleta Abellana. The case was
originally appealed to the Court of Appeals where
the following assignment of error is made:
The appellants respectfully submit that
the Trial Court erred in holding that the
supposed testament, Exh. "A", was signed
in accordance with law; and in admitting
the will to probate.
In view of the fact that the appeal involves a
question of law the said court has certified the
case to us.
The facts as found by the trial court are as
follows:
It appears on record that the last Will and
Testament (Exhibit "A"), which is sought to
be probated, is written in the Spanish
language and consists of two (2)
typewritten pages (pages 4 and 5 of the
record) double space. The first page is
signed by Juan Bello and under his name
appears typewritten "Por la testadora
Anacleta Abellana, residence Certificate A1167629, Enero 20, 1951, Ciudad de
Zamboanga',and on the second page
appears the signature of three (3)
instrumental witnesses Blas Sebastian,
Faustino Macaso and Rafael Ignacio, at the
bottom of which appears the signature of
T. de los Santos and below his signature is
his official designation as the notary public
who notarized the said testament. On the
first page on the left margin of the said
instrument also appear the signatures of
the instrumental witnesses. On the second
page, which is the last page of said last
Will and Testament, also appears the
signature of the three (3) instrumental
witnesses and on that second page on the
left margin appears the signature of Juan
Bello
under
whose
name
appears
handwritten the following phrase, "Por la
Testadora Anacleta Abellana'. The will is
duly acknowledged before Notary Public
Attorney Timoteo de los Santos. (Emphasis
supplied)

The appeal squarely presents the following issue:

Does the signature of Dr. Juan A. Abello above the
typewritten statement "Por la Testadora Anacleta
Abellana . . ., Ciudad de Zamboanga," comply
with the requirements of law prescribing the
manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in
part provides as follows:
Every will, other than a holographic will,
must be subscribed at the end thereof by
the testator himself orby 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 witness in the presence of
the testator and of one another. (Emphasis
supplied.)
The clause "must be subscribed at the end
thereof by the testator himself or by the
testator's name written by some other person in
his presence and by his express direction," is
practically the same as the provisions of Section
618 of the Code of Civil Procedure (Act No. 190)
which reads as follows:
No will, except as provided in the
preceding section shall be valid to pass
any estate, real or personal, nor charge or
affect the same, unless it be in writing and
signed by the testator, or by the testator's
name written by some other person in his
presence, and by his express direction,
and attested and subscribed by three or
more credible witnesses in the presence of
the testator and of each other. . . .
(Emphasis supplied).
Note that the old law as well as the new require
that the testator himself sign the will, or if he
cannot do so, the testator's name must be
written by some other person in his presence and
by his express direction. Applying this provision
this Court said in the case of Ex Parte Pedro
Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted
section 618 of the Code of Civil Procedure
that where the testator does not know
how, or is unable, to sign, it will not be
sufficient that one of the attesting
witnesses signs the will at the testator's
request, the notary certifying thereto as
provided in Article 695 of the Civil Code,
which, in this respect, was modified by
section 618 above referred to, but it is
necessary that the testator's name be
written by the person signing in his stead

in the place where he could have signed if

he knew how or was able to do so, and
this in the testator's presence and by his
express direction; so that a will signed in a
manner different than that prescribed by
law shall not be valid and will not be
allowed to be probated.
Where a testator does not know how, or is
unable for any reason, to sign the will
himself, it shall be signed in the following
manner:
John Doe by the testator, Richard Doe; or
in this form: "By the testator, John Doe,
Richard Doe." All this must be written by
the witness signing at the request of the
testator.
Therefore, under the law now in force, the
witness Naval A. Vidal should have written
at the bottom of the will the full name of
the testator and his own name in one
forms given above. He did not do so,
however, and this is failure to comply with
the law is a substantial defect which
affects the validity of the will and
precludes its allowance, notwithstanding
the fact that no one appeared to oppose it.
The same ruling was laid down in the case
of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held
that the important thing is that it clearly appears
that the name of the testatrix was signed at her
express direction; it is unimportant whether the
person who writes the name of the testatrix signs
his own or not. Cases of the same import areas
follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs. Domingo,
27
Phil.,
330;
Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix,
Anacleta Abellana, does not appear written under
the will by said Abellana herself, or by Dr. Juan
Abello. There is, therefore, a failure to comply
with the express requirement in the law that the
testator must himself sign the will, or that his
name be affixed thereto by some other person in
his presence and by his express direction.
It appearing that the above provision of the law
has not been complied with, we are constrained
to declare that the said will of the deceased
Anacleta Abellana may not be admitted to
probate.
WHEREFORE, the decision appealed from is
hereby set aside and the petition for the probate
of the will denied. With costs against petitioner.

Paras, C.J., Bengzon, Padilla, Concepcion, Reyes,

J.B.L., Barrera, Gutierrez David and Dizon,
JJ., concur.
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE
PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court
of First Instance of Southern Leyte, (Branch
III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued
by the Court of First Instance of Southern Leyte,
Branch III, in Special Proceedings No. R-1713,
entitled "In the Matter of the Petition for Probate
of the Will of Dorotea Perez, Deceased; Apolonio
Taboada, Petitioner", which denied the probate of
the will, the motion for reconsideration and the
motion
for
appointment
of
a
special
administrator.
In the petition for probate filed with the
respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea
Perez. Written in the Cebuano-Visayan dialect, the
will consists of two pages. The first page contains
the entire testamentary dispositions and is signed
at the end or bottom of the page by the testatrix
alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which
contains the attestation clause and the
acknowledgment is signed at the end of the
attestation clause by the three (3) attesting
witnesses and at the left hand margin by the
testatrix.
Since no opposition was filed after the petitioner's
compliance with the requirement of publication,
the trial court commissioned the branch clerk of
court to receive the petitioner's evidence.
Accordingly,
the
petitioner
submitted
his
evidence and presented Vicente Timkang, one of
the subscribing witnesses to the will, who
testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon
C. Pamatian issued the questioned order denying
the probate of the will of Dorotea Perez for want
of a formality in its execution. In the same order,
the petitioner was also required to submit the
names of the intestate heirs with their
corresponding addresses so that they could be

properly notified and could intervene in the

summary settlement of the estate.
Instead of complying with the order of the trial
court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period
within which to deliberate on any step to be taken
as a result of the disallowance of the will. He also
asked that the ten-day period required by the
court to submit the names of intestate heirs with
their addresses be held in abeyance.
The petitioner filed a motion for reconsideration
of the order denying the probate of the will.
However, the motion together with the previous
manifestation and/or motion could not be acted
upon by the Honorable Ramon C. Pamatian due to
his transfer to his new station at Pasig, Rizal. The
said motions or incidents were still pending
resolution when respondent Judge Avelino S.
Rosal assumed the position of presiding judge of
the respondent court.
Meanwhile, the petitioner filed a motion for the
appointment of special administrator.
Subsequently, the new Judge denied the motion
for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of
denial, the motion for the appointment of special
administrator was likewise denied because of the
petitioner's failure to comply with the order
requiring him to submit the names of' the
intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does
Article 805 of the Civil Code require that the
testatrix and all the three instrumental and
attesting witnesses sign at the end of the will and
in the presence of the testatrix and of one
another?
Article 805 of the Civil Code provides:
Every will, other than a holographic
will, must be subscribed at the end
thereof by the testator himself or
by the testator's name written by
some other person in his presence,
and by his express direction, and
attested and subscribed by three or
more credible witnesses in the
presence of the testator and of one
another.
The
testator
or
the
person
requested by him to write his name
and the instrumental witnesses of
the will, shall also sign, as
aforesaid, each and every page
thereof, except the last, on the left
margin, and all the pages shall be

numbered correlatively in letters

placed on the upper part of each
page.
The attestation shall state the
number of pages used upon which
the will is written, and the fact that
the testator signed the will and
every page thereof, or caused
some other person to write his
name, under his express direction,
in the presence of the instrumental
witnesses, and that the lacier
witnesses and signed the will and
the pages thereof in the presence
of the testator and of one another.
If the attestation clause is in a
language not known to the
witnesses, it shall be interpreted to
the
witnesses,
it
shall
be
interpreted to them.
The respondent Judge interprets the abovequoted provision of law to require that, for a
notarial will to be valid, it is not enough that only
the testatrix signs at the "end" but an the three
subscribing witnesses must also sign at the same
place or at the end, in the presence of the
testatrix and of one another because the
attesting witnesses to a will attest not merely the
will itself but also the signature of the testator. It
is not sufficient compliance to sign the page,
where the end of the will is found, at the left hand
margin of that page.
On the other hand, the petitioner maintains that
Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute
necessity for the extrinsic validity of the wig that
the signatures of the subscribing witnesses
should be specifically located at the end of the
wig after the signature of the testatrix. He
contends that it would be absurd that the
legislature intended to place so heavy an import
on the space or particular location where the
signatures are to be found as long as this space
or particular location wherein the signatures are
found is consistent with good faith and the honest
frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code,
the will must be subscribed or signed at its end
by the testator himself or by the testator's name
written by another person in his presence, and by
his express direction, and attested and
subscribed by three or more credible witnesses in
the presence of the testator and of one another.

It must be noted that the law uses the

terms attested and subscribed Attestation
consists in witnessing the testator's execution of
the will in order to see and take note mentally
that those things are, done which the statute
requires for the execution of a will and that the
signature of the testator exists as a fact. On the
other hand, subscription is the signing of the
witnesses' names upon the same paper for the
purpose of Identification of such paper as the will
which was executed by the testator. (Ragsdale v.
Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is
concerned, it is our considered view that the will
in this case was subscribed in a manner which
fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on
the left margin of the first page of the will
attested not only to the genuineness of the
signature of the testatrix but also the due
execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual
forms should be ignored, especially where the
authenticity of the will is not assailed. (Gonzales
v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the
underlying
and
fundamental
objective
permeating the provisions on the law on wills in
this project consists in the liberalization of the
manner of their execution with the end in view of
giving the testator more freedom in expressing
his last wishes but with sufficient safeguards and
restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure
and influence upon the testator. This objective is
in accord with the modern tendency in respect to
the formalities in the execution of a will" (Report
of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated
in his questioned order that were not for the
defect in the place of signatures of the witnesses,
he would have found the testimony sufficient to
establish the validity of the will.
The objects of attestation and of subscription
were fully met and satisfied in the present case
when the instrumental witnesses signed at the
left margin of the sole page which contains all the
testamentary dispositions, especially so when the
will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or
substitution behind the questioned order.

We have examined the will in question and

noticed that the attestation clause failed to state
the number of pages used in writing the will. This
would have been a fatal defect were it not for the
fact that, in this case, it is discernible from the
entire wig that it is really and actually composed
of only two pages duly signed by the testatrix and
her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the
testamentary dispositions is signed by the
testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The acknowledgment itself
states that "This Last Will and Testament consists
of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164),
this Court made the following observations with
respect to the purpose of the requirement that
the attestation clause must state the number of
pages used:
The law referred to is article 618 of
the Code of Civil Procedure, as
amended by Act No. 2645, which
requires that the attestation clause
shall state the number of pages or
sheets upon which the win is
written, which requirement has
been held to be mandatory as an
effective safeguard against the
possibility
of
interpolation
or
omission of some of the pages of
the will to the prejudice of the heirs
to whom the property is intended
to be bequeathed (In re will of
Andrada,
42
Phil.,
180;
Uy
Coque vs. Navas L. Sioca, 43 Phil.
405; Gumban vs. Gorecho, 50 Phil.
30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil.
611). The ratio decidendi of these
cases seems to be that the
attestation clause must contain a
statement of the number of sheets
or pages composing the will and
that if this is missing or is omitted,
it
will
have
the
effect
of
invalidating
the
will
if
the
deficiency cannot be supplied, not
by evidence aliunde, but by a
consideration or examination of the
will itself. But here the situation is
different. While the attestation

clause does not state the number

of sheets or pages upon which the
will is written, however, the last
part of the body of the will contains
a statement that it is composed of
eight pages, which circumstance in
our opinion takes this case out of
the rigid rule of construction and
places it within the realm of similar
cases where a broad and more
liberal view has been adopted to
prevent the will of the testator from
being defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the
following ruling which applies a similar liberal
approach:
... Impossibility of substitution of
this page is assured not only (sic)
the fact that the testatrix and two
other witnesses did sign the
defective page, but also by its
bearing the coincident imprint of
the seal of the notary public before
whom the testament was ratified
by testatrix and all three witnesses.
The law should not be so strictly
and literally interpreted as to
penalize the testatrix on account of
the inadvertence of a single
witness over whose conduct she
had no control where the purpose
of the law to guarantee the Identity
of
the
testament
and
its
component pages is sufficiently
attained,
no
intentional
or
deliberate deviation existed, and
the evidence on record attests to
the fun observance of the statutory
requisites. Otherwise, as stated in
Vda. de Gil. Vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may
sabotage the will by muddling or
bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby
granted. The orders of the respondent court
which denied the probate of tile will, the motion
for reconsideration of the denial of probate, and
the motion for appointment of a special
administrator are set aside. The respondent court
is ordered to allow the probate of the wig and to

conduct further proceedings in accordance with

this decision. No pronouncement on costs.
SO ORDERED.
THIRD DIVISION
G.R. No. 122880
April 12, 2006
FELIX
AZUELA, Petitioner,
vs.
COURT
OF
APPEALS,
GERALDA
AIDA
CASTILLO substituted by ERNESTO G.
CASTILLO, Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective
notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December
1982 at the age of 80. In refusing to give legal
recognition to the due execution of this
document, the Court is provided the opportunity
to assert a few important doctrinal rules in the
execution of notarial wills, all self-evident in view
of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not
contain the number of pages on which the
will is written is fatally defective. A will
whose attestation clause is not signed by
the instrumental witnesses is fatally
defective. And perhaps most importantly, a
will
which
does
not
contain
an
acknowledgment, but a mere jurat, is fatally
defective. Any one of these defects is
sufficient to deny probate. A notarial will
with all three defects is just aching for
judicial rejection.
There is a distinct and consequential reason the
Civil Code provides a comprehensive catalog of
imperatives for the proper execution of a notarial
will. Full and faithful compliance with all the
detailed requisites under Article 805 of the Code
leave little room for doubt as to the validity in the
due execution of the notarial will. Article 806
likewise imposes another safeguard to the
validity of notarial wills that they be
acknowledged before a notary public by the
testator and the witnesses. A notarial will
executed with indifference to these two codal
provisions opens itself to nagging questions as to
its legitimacy.
The case stems from a petition for probate filed
on 10 April 1984 with the Regional Trial Court
(RTC) of Manila. The petition filed by petitioner
Felix Azuela sought to admit to probate the
notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of
the cousin of the decedent.

The will, consisting of two (2) pages and written

in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San
Diego St., Sampaloc, Manila, pitongput siyam (79)
na gulang, nasa hustong pagi-isip, pag-unawa at
memoria ay nag-hahayag na ito na ang aking
huling habilin at testamento, at binabali wala ko
lahat
ang
naunang
ginawang
habilin
o
testamento:
Una-Hinihiling ko na ako ay mailibing sa
Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko at
ang taga-pag-ingat (Executor) ng habiling ito ay
magtatayo ng bantayog upang silbing ala-ala sa
akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang
lahat ng karapatan sa aking pamangkin na si
Felix Azuela, na siyang nag-alaga sa akin sa
mahabang panahon, yaong mga bahay na
nakatirik sa lote numero 28, Block 24 at
nakapangalan sa Pechaten Korporasyon, ganoon
din ibinibigay ko ang lahat ng karapatan sa bahay
na nakatirik sa inoopahan kong lote, numero 43,
Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng
karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay
Felix Azuela at ang pagkakaloob kong ito ay
walang pasubalit at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE
na siyang nagpapatupad ng huling habiling ito at
kagustuhan ko rin na hindi na kailanman siyang
mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa
Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon
pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia E. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay
nilagdaan ng nasabing tagapagmana sa ilalim ng
kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at
bawat sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at
sa harap ng lahat at bawat isa sa amin, sa ilalim
ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawat dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.

Sampaloc, Manila Res. Cert. No. A-7717-37

Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on
Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng
Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed
their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the
attestation clause.
The probate petition adverted to only two (2)
heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn
Igsolo, who was alleged to have resided abroad.
Petitioner prayed that the will be allowed, and
that letters testamentary be issued to the
designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo
(Geralda Castillo), who represented herself as the
attorney-in-fact of "the 12 legitimate heirs" of the
decedent.2 Geralda Castillo claimed that the will
is a forgery, and that the true purpose of its
emergence was so it could be utilized as a
defense in several court cases filed by oppositor
against petitioner, particularly for forcible entry
and usurpation of real property, all centering on
petitioners right to occupy the properties of the
decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was
actually survived by 12 legitimate heirs, namely
her grandchildren, who were then residing
abroad. Per records, it was subsequently alleged
that decedent was the widow of Bonifacio Igsolo,
who died in 1965,4 and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased her
mother by three (3) months.5
Oppositor Geralda Castillo also argued that the
will was not executed and attested to in

accordance with law. She pointed out that

decedents signature did not appear on the
second page of the will, and the will was not
properly acknowledged. These twin arguments
are among the central matters to this petition.
After due trial, the RTC admitted the will to
probate, in an Order dated 10 August 1992.6 The
RTC favorably took into account the testimony of
the three (3) witnesses to the will, Quirino
Agrava, Lamberto Leano, and Juanito Estrada.
The RTC also called to fore "the modern tendency
in respect to the formalities in the execution of a
will x x x with the end in view of giving the
testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted
oppositors arguments that the will was not
properly executed and attested to in accordance
with law.
After a careful examination of the will and
consideration of the testimonies of the
subscribing and attesting witnesses, and having
in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the
liberalization of the interpretation of the law on
the formal requirements of a will with the end in
view of giving the testator more freedom in
expressing his last wishes, this Court is
persuaded to rule that the will in question is
authentic and had been executed by the testatrix
in accordance with law.
On the issue of lack of acknowledgement, this
Court has noted that at the end of the will after
the signature of the testatrix, the following
statement is made under the sub-title, "Patunay
Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon
pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang
Huling Habilin, ngayong ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim
ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at
bawat sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at
sa harap ng lahat at bawat isa sa amin, sa ilalim
ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawat dahon ng kasulatan ito."
The aforequoted declaration comprises the
attestation clause and the acknowledgement and
is considered by this Court as a substantial
compliance with the requirements of the law.
On the oppositors contention that the attestation
clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of

the view that the signing by the subscribing

witnesses on the left margin of the second page
of the will containing the attestation clause and
acknowledgment, instead of at the bottom
thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositors argument that the
will was not numbered correlatively in letters
placed on upper part of each page and that the
attestation did not state the number of pages
thereof, it is worthy to note that the will is
composed of only two pages. The first page
contains the entire text of the testamentary
dispositions, and the second page contains the
last portion of the attestation clause and
acknowledgement. Such being so, the defects are
not of a serious nature as to invalidate the will.
For the same reason, the failure of the testatrix to
affix her signature on the left margin of the
second page, which contains only the last portion
of the attestation clause and acknowledgment is
not a fatal defect.
As regards the oppositors assertion that the
signature of the testatrix on the will is a forgery,
the testimonies of the three subscribing
witnesses to the will are convincing enough to
establish the genuineness of the signature of the
testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals
by Ernesto Castillo, who had substituted his since
deceased mother-in-law, Geralda Castillo. In a
Decision dated 17 August 1995, the Court of
Appeals reversed the trial court and ordered the
dismissal of the petition for probate. 9 The Court of
Appeals noted that the attestation clause failed
to state the number of pages used in the will,
thus rendering the will void and undeserving of
probate.10
Hence, the present petition.
Petitioner argues that the requirement under
Article 805 of the Civil Code that "the number of
pages used in a notarial will be stated in the
attestation clause" is merely directory, rather
than mandatory, and thus susceptible to what he
termed as "the substantial compliance rule."11
The solution to this case calls for the application
of Articles 805 and 806 of the Civil Code, which
we replicate in full.
Art. 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by

three or more credible witnesses in the presence

of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the
presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all
the pages thereof in the presence of the testator
and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
them.
Art. 806. Every will must be acknowledged before
a notary public by the testator and the witnesses.
The notary public shall not be required to retain a
copy of the will, or file another with the office of
the Clerk of Court.
The appellate court, in its Decision, considered
only one defect, the failure of the attestation
clause to state the number of pages of the will.
But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation
clause fails to state the number of pages of the
will.12 There was an incomplete attempt to
comply with this requisite, a space having been
allotted for the insertion of the number of pages
in the attestation clause. Yet the blank was never
filled in; hence, the requisite was left uncomplied
with.
The Court of Appeals pounced on this defect in
reversing the trial court, citing in the process Uy
Coque v. Navas L. Sioca 13 and In re: Will of
Andrada.14 In Uy Coque, the Court noted that
among the defects of the will in question was the
failure of the attestation clause to state the
number of pages contained in the will. 15 In ruling
that the will could not be admitted to probate, the
Court made the following consideration which
remains highly relevant to this day: "The purpose
of requiring the number of sheets to be stated in
the attestation clause is obvious; the document
might easily be so prepared that the
removal of a sheet would completely
change the testamentary dispositions of the

will and in the absence of a statement of

the total number of sheets such removal
might be effected by taking out the sheet
and changing the numbers at the top of the
following sheets or pages. If, on the other
hand, the total number of sheets is stated in the
attestation clause the falsification of the
document will involve the inserting of new pages
and the forging of the signatures of the testator
and witnesses in the margin, a matter attended
with much greater difficulty."16
The case of In re Will of Andrada concerned a will
the attestation clause of which failed to state the
number of sheets or pages used. This
consideration alone was sufficient for the Court to
declare "unanim[ity] upon the point that the
defect pointed out in the attesting clause is
fatal."17 It was further observed that "it cannot be
denied that the x x x requirement affords
additional security against the danger that the
will may be tampered with; and as the Legislature
has seen fit to prescribe this requirement, it must
be considered material."18
Against
these
cited
cases,
petitioner
cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the
wills concerned therein despite the fact that the
attestation clause did not state the number of
pages of the will. Yet the appellate court itself
considered the import of these two cases, and
made the following distinction which petitioner is
unable to rebut, and which we adopt with
approval:
Even a cursory examination of the Will (Exhibit
"D"), will readily show that the attestation does
not state the number of pages used upon which
the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the
Supreme Court in "Manuel Singson versus Emilia
Florentino, et al., 92 Phil. 161 and Apolonio
[Taboada] versus Hon. Avelino Rosal, et al., 118
SCRA 195," to the effect that a will may still be
valid even if the attestation does not contain the
number of pages used upon which the Will is
written. However, the Decisions of the Supreme
Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case
of "Manuel Singson versus Emilia Florentino, et
al., supra," although the attestation in the subject
Will did not state the number of pages used in the
will, however, the same was found in the last part
of the body of the Will:
"x x x

The law referred to is article 618 of the Code of

Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which
the will is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice
of the heirs to whom the property is intended to
be bequeathed (In re Will of Andrada, 42 Phil.
180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405;
Gumban vs. Gorcho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must
contain a statement of the number of sheets or
pages composing the will and that if this is
missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be
supplied, not by evidence aliunde, but by a
consideration or examination of the will itself. But
here the situation is different. While the
attestation clause does not state the number of
sheets or pages upon which the will is
written, however, the last part of the body of the
will contains a statement that it is composed of
eight pages, which circumstance in our opinion
takes this case out of the rigid rule of
construction and places it within the realm of
similar cases where a broad and more liberal view
has been adopted to prevent the will of the
testator from being defeated by purely technical
considerations."
(page
165-165,
supra)
(Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal,
et al." supra, the notarial acknowledgement in
the Will states the number of pages used in the:
"x x x
We have examined the will in question and
noticed that the attestation clause failed to state
the number of pages used in writing the will. This
would have been a fatal defect were it not for the
fact that, in this case, it is discernible from the
entire will that it is really and actually composed
of only two pages duly signed by the testatrix and
her instrumental witnesses. As earlier stated, the
first page which contains the entirety of the
testamentary dispositions is signed by the
testatrix at the end or at the bottom while the
instrumental witnesses signed at the left margin.
The other page which is marked as "Pagina dos"
comprises the attestation clause and the
acknowledgment. The
acknowledgment
itself
states that "this Last Will and Testament consists

of two pages including this page" (pages 200201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of
pages used in the will is not stated in any part of
the Will. The will does not even contain any
notarial acknowledgment wherein the number of
pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior
to the enactment of the Civil Code in 1950, at a
time when the statutory provision governing the
formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on
these cases remains apropos, considering that
the requirement that the attestation state the
number of pages of the will is extant from Section
618.23 However, the enactment of the Civil Code
in 1950 did put in force a rule of interpretation of
the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary
from the philosophy that governed these two
cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will
invalid if it is proved that the will was in fact
executed and attested in substantial compliance
with all the requirements of article 805."
In the same vein, petitioner cites the report of the
Civil Code Commission, which stated that "the
underlying
and
fundamental
objective
permeating the provisions on the [law] on [wills]
in this project consists in the [liberalization] of the
manner of their execution with the end in view of
giving
the
testator
more
[freedom]
in
[expressing] his last wishes. This objective is in
accord with the [modern tendency] in respect to
the
formalities
in
the
execution
of
wills."24 However, petitioner conveniently omits
the qualification offered by the Code Commission
in the very same paragraph he cites from their
report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of
undue and improper pressure and influence upon
the testator."25
Caneda v. Court of Appeals26 features an
extensive discussion made by Justice Regalado,
speaking for the Court on the conflicting views on
the manner of interpretation of the legal
formalities required in the execution of the
attestation
clause
in
wills.27 Uy
Coque and Andrada are cited therein, along with
several other cases, as examples of the

application
of
the
rule
of
strict
construction.28 However, the Code Commission
opted to recommend a more liberal construction
through the "substantial compliance rule" under
Article 809. A cautionary note was struck though
by Justice J.B.L. Reyes as to how Article 809
should be applied:
x x x The rule must be limited to disregarding
those defects that can be supplied by an
examination of the will itself: whether all the
pages are consecutively numbered; whether the
signatures appear in each and every page;
whether the subscribing witnesses are three or
the will was notarized. All these are facts that the
will itself can reveal, and defects or even
omissions concerning them in the attestation
clause can be safely disregarded. But the total
number of pages, and whether all persons
required to sign did so in the presence of
each other must substantially appear in the
attestation clause, being the only check
against
perjury
in
the
probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by
Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number
of pages of the will in the attestation clause is
one of the defects which cannot be simply
disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation
clause failed to state that the witnesses
subscribed their respective signatures to the will
in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L.
Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that
the rule, as it now stands, is that omission which
can be supplied by an examination of the will
itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly,
would not obstruct the allowance to probate of
the will being assailed. However, those omissions
which
cannot
be
supplied
except
by
evidence aliunde would result in the invalidation
of the attestation clause and ultimately, of the
will itself."31 Thus, a failure by the attestation
clause to state that the testator signed every
page can be liberally construed, since that fact
can be checked by a visual examination; while a
failure by the attestation clause to state that the
witnesses signed in one anothers presence
should be considered a fatal flaw since the

attestation is the only textual guarantee of

compliance.32
The failure of the attestation clause to state the
number of pages on which the will was written
remains a fatal flaw, despite Article 809. The
purpose of the law in requiring the clause to state
the number of pages on which the will is written
is to safeguard against possible interpolation or
omission of one or some of its pages and to
prevent any increase or decrease in the
pages.33 The failure to state the number of pages
equates with the absence of an averment on the
part of the instrumental witnesses as to how
many pages consisted the will, the execution of
which they had ostensibly just witnessed and
subscribed to. Following Caneda, there is
substantial compliance with this requirement if
the will states elsewhere in it how many pages it
is comprised of, as was the situation
in Singson and Taboada. However, in this case,
there could have been no substantial compliance
with the requirements under Article 805 since
there is no statement in the attestation clause or
anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate
from the need to comply with the formal
requirements as enumerated under Article 805.
Whatever the inclinations of the members of the
Code Commission in incorporating Article 805,
the fact remains that they saw fit to prescribe
substantially the same formal requisites as
enumerated in Section 618 of the Code of Civil
Procedure, convinced that these remained
effective safeguards against the forgery or
intercalation of notarial wills.34 Compliance with
these requirements, however picayune in
impression, affords the public a high degree of
comfort that the testator himself or herself had
decided to convey property post mortem in the
manner
established
in
the
will.35 The
transcendent legislative intent, even as
expressed in the cited comments of the
Code Commission, is for the fruition of the
testators incontestable desires, and not for
the indulgent admission of wills to probate.
The Court could thus end here and affirm the
Court of Appeals. However, an examination of the
will itself reveals a couple of even more critical
defects that should necessarily lead to its
rejection.
For one, the attestation clause was not
signed by the instrumental witnesses. While
the signatures of the instrumental witnesses

appear on the left-hand margin of the will, they

do not appear at the bottom of the attestation
clause which after all consists of their averments
before the notary public.
Cagro v. Cagro36 is material on this point. As in
this case, "the signatures of the three witnesses
to the will do not appear at the bottom of the
attestation clause, although the page containing
the same is signed by the witnesses on the lefthand
margin."37 While
three
(3)
38
Justices considered the signature requirement
had been substantially complied with, a majority
of six (6), speaking through Chief Justice Paras,
ruled that the attestation clause had not been
duly signed, rendering the will fatally defective.
There is no question that the signatures of the
three witnesses to the will do not appear at the
bottom of the attestation clause, although the
page containing the same is signed by the
witnesses on the left-hand margin.
We are of the opinion that the position taken by
the appellant is correct. The attestation clause is
"a memorandum of the facts attending the
execution of the will" required by law to be made
by the attesting witnesses, and it must
necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act
of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that
signatures of the three witnesses on the left-hand
margin conform substantially to the law and may
be deemed as their signatures to the attestation
clause. This is untenable, because said signatures
are in compliance with the legal mandate that the
will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add
such clause to a will on a subsequent occasion
and in the absence of the testator and any or all
of the witnesses.39
The Court today reiterates the continued efficacy
of Cagro. Article 805 particularly segregates the
requirement that the instrumental witnesses sign
each page of the will, from the requisite that the
will be "attested and subscribed by [the
instrumental witnesses]." The respective intents
behind these two classes of signature are distinct
from each other. The signatures on the left-hand
corner of every page signify, among others, that
the witnesses are aware that the page they are
signing forms part of the will. On the other hand,

the signatures to the attestation clause establish

that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed,
the attestation clause is separate and apart from
the disposition of the will. An unsigned attestation
clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand
margin of the page containing the unsigned
attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the
clause, since the signatures that do appear on
the page were directed towards a wholly different
avowal.
The Court may be more charitably disposed had
the witnesses in this case signed the attestation
clause itself, but not the left-hand margin of the
page containing such clause. Without diminishing
the value of the instrumental witnesses
signatures on each and every page, the fact must
be noted that it is the attestation clause which
contains the utterances reduced into writing of
the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required
under Article 805 to state the number of pages
used upon which the will is written; the fact that
the testator had signed the will and every page
thereof; and that they witnessed and signed the
will and all the pages thereof in the presence of
the testator and of one another. The only proof in
the will that the witnesses have stated these
elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to
have been validly attested to by the instrumental
witnesses, as they failed to sign the attestation
clause.
Yet, there is another fatal defect to the will on
which the denial of this petition should also
hinge. The requirement under Article 806 that
"every will must be acknowledged before a
notary public by the testator and the witnesses"
has also not been complied with. The importance
of this requirement is highlighted by the fact that
it had been segregated from the other
requirements under Article 805 and entrusted
into a separate provision, Article 806. The nonobservance of Article 806 in this case is equally
as critical as the other cited flaws in compliance
with Article 805, and should be treated as of
equivalent import.
In lieu of an acknowledgment, the notary public,
Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981
dito sa Lungsod ng Maynila."40 By no manner of

contemplation can those words be construed as

an acknowledgment. An acknowledgment is the
act of one who has executed a deed in going
before some competent officer or court and
declaring it to be his act or deed. 41 It involves an
extra step undertaken whereby the signor
actually declares to the notary that the executor
of a document has attested to the notary that the
same is his/her own free act and deed.
It might be possible to construe the averment as
a jurat, even though it does not hew to the usual
language thereof. A jurat is that part of an
affidavit where the notary certifies that before
him/her, the document was subscribed and sworn
to by the executor.42 Ordinarily, the language of
the jurat should avow that the document was
subscribed and sworn before the notary public,
while in this case, the notary public averred that
he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or
"notarized" encompasses the signing of and
swearing in of the executors of the document,
which in this case would involve the decedent
and the instrumental witnesses.
Yet even if we consider what was affixed by the
notary public as a jurat, the will would
nonetheless remain invalid, as the express
requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and
sworn to. The will does not present any textual
proof, much less one under oath, that the
decedent and the instrumental witnesses
executed or signed the will as their own free act
or deed. The acknowledgment made in a will
provides for another all-important legal safeguard
against spurious wills or those made beyond the
free consent of the testator. An acknowledgement
is not an empty meaningless act. 43 The
acknowledgment coerces the testator and the
instrumental witnesses to declare before an
officer of the law that they had executed and
subscribed to the will as their own free act or
deed. Such declaration is under oath and under
pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the
execution of spurious wills, or those executed
without the free consent of the testator. It also
provides a further degree of assurance that the
testator is of certain mindset in making the
testamentary dispositions to those persons
he/she had designated in the will.
It may not have been said before, but we can
assert the rule, self-evident as it is under Article
806. A notarial will that is not acknowledged

before a notary public by the testator and

the witnesses is fatally defective, even if it
is subscribed and sworn to before a notary
public.
There are two other requirements under Article
805 which were not fully satisfied by the will in
question. We need not discuss them at length, as
they are no longer material to the
disposition of this case. The provision requires
that the testator and the instrumental witnesses
sign each and every page of the will on the left
margin, except the last; and that all the pages
shall be numbered correlatively in letters placed
on the upper part of each page. In this case, the
decedent, unlike the witnesses, failed to sign
both pages of the will on the left margin, her only
signature appearing at the so-called "logical
end"44 of the will on its first page. Also, the will
itself is not numbered correlatively in letters on
each page, but instead numbered with Arabic
numerals. There is a line of thought that has
disabused the notion that these two requirements
be construed as mandatory.45 Taken in isolation,
these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as
these omissions are not decisive to the
adjudication of this case, they need not be dwelt
on, though indicative as they may be of a general
lack of due regard for the requirements under
Article 805 by whoever executed the will.
All told, the string of mortal defects which the will
in question suffers from makes the probate denial
inexorable.
WHEREFORE, the petition is DENIED. Costs
against petitioner.
SO ORDERED.
G.R. No. 42258
September 5, 1936
In re Will of the deceased Leoncia Tolentino.
VICTORIO
PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo
Abola
for
petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor
Aquilina Tolentino, pending resolution: That of
January 29, 1935, praying for the reconsideration
of the decision of the court and that of the same
date, praying for a new trial.
The
oppositor
bases
her
motion
for
reconsideration upon the following facts relied
upon in her pleading:
1. That the testatrix did not personally place her
thumbmark on her alleged will;

2. That the testatrix did not request Attorney

Almario to write her name and surname on the
spaces of the will where she should place her
thumbmarks;
3. That the will in question was not signed by the
testatrix on the date indicated therein;
4. That the testatrix never made the will in
question; and
5. That on the date the will in question was
executed, the testatrix was no longer in a
physical or mental condition to make it.
We have again reviewed the evidence to
determine once more whether the errors
assigned by the oppositor in her brief have not
been duly considered, whether some fact or
detail which might have led us to another
conclusion has been overlooked, or whether the
conclusions arrived at in our decision are not
supported by the evidence. We have found that
the testatrix Leoncia Tolentino, notwithstanding
her advanced age of 92 years, was in good health
until September 1, 1933. She had a slight cold on
said date for which reason she was visited by her
physician, Dr. Florencio Manuel. Said physician
again visited her three or four days later and
found her still suffering from said illness but there
was no indication that she had but a few days to
live. She ate comparatively well and conserved
her mind and memory at least long after noon of
September 7, 1933. She took her last
nourishment of milk in the morning of the
following day, September 8, 1933, and death did
not come to her until 11 o'clock sharp that
morning.
The will in question was prepared by Attorney
Marciano Almario between 11 and 12 o'clock
noon on September 7, 1933, in the house of the
testatrix Leoncia Tolentino, after she had
expressed to said attorney her desire to make a
will and bequeath her property to the petitioner
Victorio Payad in compensation according to her,
for his diligent and faithful services rendered to
her. Victorio Payad had grown up under the care
of the testatrix who had been in her home from
childhood. The will was written by Attorney
Almario in his own handwriting, and was written
in Spanish because he had been instructed to do
so by the testatrix. It was later read to her in the
presence of Pedro L. Cruz, Jose Ferrer Cruz,
Perfecto L. Ona and other persons who were then
present. The testatrix approved all the contents
of the document and requested Attorney Almario
to write her name where she had to sign by
means of her thumbmark in view of the fact that

her fingers no longer had the necessary strength

to hold a pen. She did after having taken the pen
and tried to sign without anybody's help. Attorney
Almario proceeded to write the name of the
testatrix on the three pages composing the will
and the testatrix placed her thumbmark on said
writing with the help of said attorney, said help
consisting in guiding her thumb in order to place
the mark between her name and surname, after
she herself had moistened the tip of her thumb
with which she made such mark, on the ink pad
which was brought to her for said purpose. Said
attorney later signed the three pages of the will in
the presence of the testatrix and also of Pedro L.
Cruz, and Jose Ferrer Cruz and Perfecto L. Ona,
who, in turn, forthwith signed it successively and
exactly under the same circumstances above
stated.
In support of her claim that the testatrix did not
place her thumbmark on the will on September 7,
1983, and that she never made said will because
she was no longer physically or mentally in a
condition do so, the oppositor cites the testimony
of Julian Rodriguez, Gliceria Quisonia, Paz de Leon
and her own.
Julian Rodriguez and Gliceria Quisonia testified
that they had not seen Attorney Almario in the
morning of September 7, 1933, in the house of
the deceased where they were then living, and
that the first time that they saw him there was at
about 12 o'clock noon on September 8th of said
year, when Leoncia Tolentino was already dead,
Gliceria Quisonia stating that on that occasion
Almario arrived there accompanied only by
woman named Pacing. They did not state that
Almario was accompanied by Pedro L. Cruz, Jose
Ferrer Cruz and Perfecto L. Ona, the instrumental
witnesses of the will. Said two witnesses,
however, could not but admit that their room was
situated at the other end of the rooms occupied
by the deceased herself and by the petitioner
Victorio Payad, and that their said room and that
of Victorio Payad are separated by the stairs of
the house; that Gliceria Quisonia saw the
deceased only once on the 7th and twice on the
8th, and that Julian Rodriguez stayed in his room,
without leaving it, from 9 to 12 o'clock a. m. on
the 7th of said month. Gliceria Quisonia further
stated that in the morning of September 7th, she
prepared the noonday meal in the kitchen which
was situated under the house. Under such
circumstances it is not strange that the two did
not see the testatrix when, according to the
evidence for the petitioner, she made her will and

signed it by means of her thumbmark. In order to

be able to see her and also Almario and the
instrumental witnesses of the will, on that
occasion, it was necessary for them to enter the
room where the deceased was, or at least the
adjoining room where the will was prepared by
Attorney Almario, but they did not do so.
Gliceria Quisonia and Julian Rodriguez also
testified that on the 7th the testatrix was already
so weak that she could not move and that she
could hardly be understood because she could no
longer enunciate, making it understood thereby,
that in such condition it was absolutely
impossible for her to make any will. The attorney
for the oppositor insists likewise and more so
because, according to him and his witness Paz de
Leon, two days before the death of the testatrix,
or on September 6, 1933, she could not even
open her eyes or make herself understood.
The testimony of said witnesses is not sufficient
to overthrow, or discredit the testimony of the
petitioner-appellant or that of Attorney Almario
and the three instrumental witnesses of the will
because, to corroborate them, we have of record
the testimony of the physician of the deceased
and the accountant Ventura Loreto who are two
disinterested witnesses, inasmuch as the
outcome of these proceedings does not affect
them in the least. The two testified that two,
three or four days before the death of the
testatrix, they visited her in her home, the former
professionally, and the latter as an acquaintance,
and they then found her not so ill as to be unable
to move or hold a conversation. They stated that
she spoke to them intelligently; that she
answered all the questions which they had put to
her, and that she could still move in spite of her
weakness.
In view of the foregoing facts and considerations,
we deem it clear that the oppositor's motion for
reconsideration is unfounded.
The oppositor's motion for a new trial is based
upon the following facts: (1) That upon her death,
the deceased left a letter signed by herself,
placed in a stamped envelope and addressed to
Teodoro R. Yangco, with instructions not to open it
until after her death; (2) that there are witnesses
competent to testify on the letter in question, in
addition to other evidence discovered later, which
could not be presented at the trial; (3) that in the
letter left by the deceased, she transfers all her
property to Teodoro R. Yangco stating therein
that, upon her death, all the property in question
should become Yangco's. From this alleged fact,

the oppositor infers that the deceased never had

and could not have had the intention to make the
will in question, and (4) that said oppositor knew
of the existence of said letter only after her
former attorney, Alejandro Panis, had been
informed thereof in May, 1935, by one of Teodoro
R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for
a new trial, the oppositor filed another
supplementary motion alleging that she had
discovered some additional new evidence
consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that
Victorio Payad had called him on September 5,
1933, to prepare the will of the deceased but he
did not do so because after seeing her he had
been convinced that she could not make a will
because she had lost her speech and her eyes
were already closed.
The affidavits of Attorneys Jose Cortes and Gabino
Fernando Viola, substantially affirming the facts
alleged by the oppositor, are attached to both
motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino
Fernando Viola are not and cannot be newly
discovered evidence, and are not admissible to
warrant the holding of a new trial, because the
oppositor had been informed of the facts affirmed
by Attorney Jose Cortes in his affidavit long before
this case was decided by this court. It is stated in
said affidavit that in May, 1935, Attorney Jose
Cortes revealed to the attorney for oppositor the
fact that the deceased had left a letter whereby
she transferred all her property to Teodoro R.
Yangco, and the judgment was rendered only on
January 15, 1936, or eight months later.
The oppositor contends that she had no reason to
inform the court of said newly discovered
evidence inasmuch as the judgment of the lower
court was favorable to her. She, however,
overlooks the fact that she also appealed from
the decision of the lower court and it was her
duty, under the circumstances, to inform this
court of the discovery of said allegedly newly
discovered evidence and to take advantage of the
effects thereof because, by so doing, she could
better support her claim that the testatrix made
no will, much less the will in question. Said
evidence, is not new and is not of the nature of
that which gives rise to a new trial because,
under the law, in order that evidence may be
considered newly discovered evidence and may
serve as a ground for a new trial, it is necessary
(a) that it could not have been discovered in time,

even by the exercise of due diligence; (b) that it

be material, and (c) that it also be of such a
character as probably to change the result if
admitted
(section
497,
Act
No.
190;
Banal vs. Safont, 8 Phil., 276).
The affidavit of Attorney Cortes is neither
material nor important in the sense that, even
considering it newly discovered evidence, it will
be sufficient to support the decision of the lower
court and modify that of this court. It is simply
hearsay or, at most, corroborative evidence. The
letter of the deceased Leoncia Tolentino to
Teodoro R. Yangco would, in the eyes of the law,
be considered important or material evidence but
this court has not the letter in question before it,
and no attempt was ever made to present a copy
thereof.
The affidavit of Attorney Gabino Fernando Viola or
testimony he may give pursuant thereto is not
more competent than that of Attorney Jose Cortes
because, granting that when he was called by
Victorio Payad to help the deceased Leoncia
Tolentino to make her will and he went to her
house on September 5, 1933, the deceased was
almost unconscious, was unintelligible and could
not speak, it does not necessarily mean that on
the day she made her will, September 7, 1933,
she had not recovered consciousness and all her
mental faculties to capacitate her to dispose of all
her property. What Attorney Gabino Fernando
Viola may testify pursuant to his affidavit in
question is not and can not be newly discovered
evidence of the character provided for by law, not
only because it does not exclude the possibility
that testatrix had somewhat improved in health,
which possibility became a reality at the time she
made her will because she was then in the full
enjoyment of her mental faculties, according to
the testimony of Pedro L. Cruz, Jose Ferrer Cruz,
Perfecto L. Ona, Victorio Payad and Marciano
Almario, but also because during the hearing of
these proceedings in the Court of First Instance,
Attorney Viola was present, and the oppositor
then could have very well called him to the
witness stand, inasmuch as her attorney already
knew what Attorney Viola was to testify about,
yet she did not call him. The last fact is shown by
the following excerpt from pages 148 to 150 of
the transcript:
Mr. PANIS (attorney for the oppositor,
addressing the court): Your Honor, I should
like to present as the last witness Attorney
Fernando Viola who was called by the
petitioner Victoria Payad to prepare the

will of the deceased in his favor on

September 5, 1933.
COURT: But, Mr. Panis, are you going to
testify for Attorney Fernando Viola? Mr.
PANIS: No, Your Honor.
COURT: Well, where is that attorney?
Where is that witness whom you wish to
call to the witness stand? Mr. PANIS:
Your Honor, he is busy in the branch,
presided over by Judge Sison.
COURT: And when can he come? Mr.
PANIS. I am now going to find out, Your
Honor. If the other party, Your Honor, is
willing to admit what said witness is going
to testify in the sense that said Attorney
Fernando Viola went to the house of the
deceased on September 5, 1933, for the
purpose of talking to the deceased to draft
the will upon petition of Mr. Victorio Payad;
if the other party admits that, then I am
going waive the presentation of the
witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner):
We cannot admit that.
COURT: The court had already assumed
beforehand that the other party would not
admit that proposition.
Mr. PANIS: I request Your Honor to reserve
us the right to call the witness, Mr. Viola,
without prejudice to the other party's
calling the witness it may wish to call.
COURT: The court reserves to the
oppositor its right to call Attorney Viola to
the witness stand.
If, after all, the oppositor did not decide to call
Attorney Viola to testify as a witness in her favor,
it might have been because she considered his
testimony unimportant and unnecessary, and at
the present stage of the proceedings, it is already
too late to claim that what said attorney may now
testify is a newly discovered evidence.
For the foregoing considerations, those stated by
this court in the original decision, and the
additional reason that, as held in the case
of Chung Kiat vs. Lim Kio (8 Phil., 297), the right
to a new trial on the ground of newly discovered
evidence is limited to ordinary cases pending in
this court on bills of exceptions, the motion for
reconsideration and a new trial filed by the
oppositor are hereby denied, ordering that the
record be remanded immediately to the lower
court. So ordered.
EN BANC
G.R. No. L-10907
June 29, 1957

AUREA
MATIAS, petitioner,
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET
AL., respondents.
J.
Gonzales
Orense
for
petitioner.
Venancio H. Aquino for respondents.
CONCEPCION, J.:
Petitioner
Aurea
Matias
seeks
a
writ
of certiorari to annul certain orders of Hon.
Primitivo L. Gonzales, as Judge of the Court of
First Instance of Cavite, in connection with Special
Proceedings No. 5213 of said court, entitled
"Testate Estate of the Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said
special proceedings with a petition for the
probate of a document purporting to be the last
will and testament of her aunt, Gabina Raquel,
who died single on May 8, 1952, at the age of 92
years. The heir to the entire estate of the
deceased except the properties bequeathed to
her other niece and nephews, namely, Victorina
Salud, Santiago Salud, Policarpio Salud, Santos
Matias and Rafael Matias is, pursuant to said
instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia
Salud, a first cousin of the deceased, opposed the
probate of her alleged will, and, after appropriate
proceedings, the court, presided over by
respondent Judge, issued an order, dated
February 8, 1956, sustaining said opposition and
denying the petition for probate. Subsequently,
Aurea Matias brought the matter on appeal to this
Court (G.R. No. L-10751), where it is now pending
decision.
Meanwhile, or on February 17, 1956, Basilia Salud
moved for the dismissal of Horacio Rodriguez, as
special administrator of the estate of the
deceased, and the appointment, in his stead of
Ramon Plata. The motion was set for hearing on
February 23, 1956, on which date the court
postponed the hearing to February 27, 1956.
Although notified of this order, Rodriguez did not
appear on the date last mentioned. Instead, he
filed an urgent motion praying for additional time
within which to answer the charges preferred
against him by Basilia Salud and for another
postponement of said hearing. This motion was
not granted, and Basilia Salud introduced
evidence in support of said charges, whereupon
respondent Judge by an order, dated February 27,
1956, found Rodriguez guilty of abuse of
authority and gross negligence, and, accordingly,
relieved him as special administrator of the
estate of the deceased and appointed Basilia

Salud as special administratrix thereof, to "be

assisted and advised by her niece, Miss Victorina
Salud," who "shall always act as aide, interpreter
and adviser of Basilia Salud." Said order, likewise,
provided that "Basilia Salud shall be helped by Mr.
Ramon Plata . . . who is hereby appointed as coadministrator."
On March 8, 1956, Aurea Matins asked that said
order of February 27, 1956, be set aside and that
she be appointed special co-administratrix, jointly
with Horacio Rodriguez, upon the ground that
Basilia Salud is over eighty (80) years of age,
totally blind and physically incapacitated to
perform the duties of said office, and that said
movant is the universal heiress of the deceased
and the person appointed by the latter as
executrix of her alleged will. This motion was
denied in an order dated March 10, 1956, which
maintained "the appointment of the three above
named persons" Basilia Salud, Ramon Plata
and Victorina Salud "for the management of
the estate of the late Gabina Raquel pending final
decision on the probate of the alleged will of said
decedent." However, on March 17, 1956, Basilia
Salud tendered her resignation as special
administratrix by reason of physical disability,
due to old age, and recommended the
appointment, in her place, of Victorina Salud.
Before any action could be taken thereon, or on
March 21, 1956, Aurea Matias sought a
reconsideration of said order of March 10, 1956.
Moreover, on March 24, 1956, she expressed her
conformity to said resignation, but objected to
the appointment, in lieu of Basilia Salud, of
Victorina Salud, on account of her antagonism to
said Aurea Matias she (Victorina Salud) having
been the principal and most interested witness
for the opposition to the probate of the alleged
will of the deceased and proposed that the
administration of her estate be entrusted to the
Philippine National Bank, the Monte de Piedad,
the Bank of the Philippine Islands, or any other
similar institution authorized by law therefor,
should the court be reluctant to appoint the
movant as special administratrix of said estate.
This motion for reconsideration was denied on
March 26, 1956.
Shortly afterwards, or on June 18, 1956,
respondents Ramon Plata and Victorina Salud
requested authority to collect the rents due, or
which may be due, to the estate of the deceased
and to collect all the produce of her lands, which
was granted on June 23, 1956. On June 27, 1956,
said respondents filed another motion praying for

permission to sell the palay of the deceased then

deposited in different rice mills in the province of
Cavite, which respondent judge granted on June
10, 1956. Later on, or on July 10, 1956, petitioner
instituted the present action against Judge
Gonzales, and Victorina Salud and Ramon Plata,
for the purpose of annulling the above mentioned
orders of respondent Judge, upon the ground that
the same had been issued with grave abuse of
discretion amounting to lack or excess of
jurisdiction.
In support of this pretense, it is argued that
petitioner should have preference in the choice of
special administratrix of the estate of the
decedent, she (petitioner) being the universal
heiress to said estate and, the executrix
appointed in the alleged will of the deceased,
that until its final disallowance which has not,
as yet, taken place she has a special interest in
said estate, which must be protected by giving
representation thereto in the management of said
estate; that, apart from denying her any such
representation, the management was given to
persons partial to her main opponent, namely,
Basilia Salud, inasmuch as Victorina Salud is
allied to her and Ramon Plata is a very close
friend of one of her (Basilia Salud's) attorneys;
that
Basilia
Salud
was
made
special
administratrix despite her obvious unfitness for
said office, she being over eighty (80) years of
age and blind; that said disability is borne out by
the fact that on March 17, 1956, Basilia Salud
resigned as special administratrix upon such
ground; that the Rules of Court do not permit the
appointment
of
more
than
one
special
administrator; that Horacio Rodriguez was
removed without giving petitioner a chance to be
heard in connection therewith; and that Ramon
Plata and Victorina Salud were authorized to
collect the rents due to the deceased and the
produce of her lands, as well to sell her palay,
without previous notice to the petitioner herein.
Upon the other hand, respondents maintain that
respondent Judge acted with the scope of his
jurisdiction and without any abuse of discretion;
that petitioner can not validly claim any special
interest in the estate of the deceased, because
the probate of the alleged will and testament of
the latter upon which petitioner relies has
been denied; that Horacio Rodriguez was duly
notified of the proceedings for his removal; and
that Victorina Salud and Ramon Plata have not
done anything that would warrant their removal.

Upon a review of the record, we find ourselves

unable to sanction fully the acts of respondent
Judge, for the following reasons:
1. Although Horacio Rodriguez had notice of the
hearing of the motion for his removal, dated
February 17, 1956, the record shows that
petitioner herein received copy of said motion of
February 24, 1956, or the date after that set for
the hearing thereof. Again, notice of the order of
respondent Judge, dated February 23, 1956,
postponing said hearing to February 27, 1956,
was not served on petitioner herein.
2. In her motion of February 17, 1956, Basilia
Salud prayed for the dismissal of Horacio
Rodriguez, and the appointment of Ramon Plata,
as special administrator of said estate. Petitioner
had, therefore, no notice that her main
opponent, Basilia Salud, and the latter's principal
witness, Victorina Salud, would be considered for
the management of said. As a consequence, said
petitioner had no opportunity to object to the
appointment of Basilia Salud as special
administratrix, and of Victorina Salud, as her
assistant and adviser, and the order of February
27, 1956, to this effect, denied due process to
said petitioner.
3. Said order was issued with evident knowledge
of the physical disability of Basilia Salud.
Otherwise respondent Judge would not have
directed that she "be assisted and advised by her
niece Victorina Salud," and that the latter
"shall always act as aide, interpreter and adviser
of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed
three (3) special administrators Basilia Salud,
Victorina Salud and Ramon Plata. Indeed, in the
order of March 10, 1956, respondent Judge
maintained "the appointment of the three (3)
above-named persons for the management of the
estate of the late Gabina Raquel."
5. Soon after the institution of said Special
Proceedings No. 5213, an issue arose between
Aurea Matias and Basilia Salud regarding the
person to be appointed special administrator of
the estate of the deceased. The former proposed
Horacio Rodriguez, whereas the latter urged the
appointment of Victorina Salud. By an order
dated August 11, 1952, the Court, then presided
over by Hon. Jose Bernabe, Judge, decided the
matter in favor of Horacio Rodriguez and against
Victorina Salud, upon the ground that, unlike the
latter, who, as a pharmacist and employee in the
Santa Isabel Hospital, resides In the City of
Manila, the former, a practicing lawyer and a

former public prosecutor, and later, mayor of the

In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport
City of Cavite, is a resident thereof. In other
vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby
words, the order of resident thereof. In other
annulled and set aside. The lower court should rewords, the order of respondent Judge of February
hear the matter of removal of Horacio Rodriguez
27, 1956, removing Rodriguez and appointing
and appointment of special administrators, after
Victorina Salud to the management of the estate,
due notice to all parties concerned, for action in
amounted to a reversal of the aforementioned
conformity with the views expressed herein, with
order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and
costs against respondents Victorina Salud and
testament of Gabina Raquel was denied by
Ramon Plata. It is so ordered.
respondent Judge, the order to this effect is not,
as yet, final and executory. It is pending review on
EN BANC
G.R. No. L-4067
November 29, 1951
appeal taken by Aurea Matias. The probate of
In
the
Matter
of
the
will of ANTERO
said alleged will being still within realm of legal
MERCADO,
deceased.
ROSARIO
possibility, Aurea Matias has as the universal
GARCIA, petitioner,
heir and executrix designated in said instrument
vs.
a special interest to protect during the
JULIANA LACUESTA, ET AL., respondents.
pendency of said appeal. Thus, in the case
Elviro L. Peralta and Hermenegildo A. Prieto for
of Roxas vs. Pecson* (46 Off. Gaz., 2058), this
petitioner.
Faustino B. Tobia, Juan I. Ines and Federico
Court held that a widow, designated as executrix
Tacason for respondents.
in the alleged will and testament of her deceased
PARAS, C.J.:
husband, the probate of which had denied in an
This is an appeal from a decision of the Court of
order pending appeal, "has . . . the same
Appeals disallowing the will of Antero Mercado
beneficial interest after the decision of the court
dated January 3, 1943. The will is written in the
disapproving the will, which is now pending
Ilocano dialect and contains the following
appeal, because the decision is not yet final and
attestation clause:
We, the undersigned, by these presents to
may be reversed by the appellate court."
declare that the foregoing testament of
7. The record shows that there are, at least two
Antero Mercado was signed by himself and
(2) factions among the heirs of the deceased,
also by us below his name and of this
namely, one, represented by the petitioner, and
attestation clause and that of the left
another, to which Basilia Salud and Victorina
margin of the three pages thereof. Page
Salud belong. Inasmuch as the lower court had
three the continuation of this attestation
deemed it best to appoint more than one special
clause; this will is written in Ilocano dialect
which is spoken and understood by the
administrator, justice and equity demands that
testator, and it bears the corresponding
both factions be represented in the management
number in letter which compose of three
of the estate of the deceased.
pages and all them were signed in the
The rule, laid down in Roxas vs. Pecson (supra),
presence of the testator and witnesses,
to the effect that "only one special administrator
and the witnesses in the presence of the
may be appointed to administrator temporarily"
testator and all and each and every one of
the estate of the deceased, must be considered
us witnesses.
in the light of the facts obtaining in said case. The
In testimony, whereof, we sign this
statement, this the third day of January,
lower court appointed therein one special
one thousand nine hundred forty three,
administrator for some properties forming part of
(1943) A.D.
said estate, and a special administratrix for other
properties thereof. Thus, there were two (2)
separate and independent special administrators.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
In the case at bar there is only one (1)
special administration, the powers of which shall
be
exercised
jointly
by
two
special co-(Sgd.) BIBIANA ILLEGIBLE
administrators. In short, the Roxas case is not
squarely in point. Moreover, there are authorities
The will appears to have been signed by Atty.
Florentino Javier who wrote the name of Antero
in support of the power of courts to appoint
Mercado, followed below by "A reugo del testator"
several special co-administrators (Lewis vs.
and the name of Florentino Javier. Antero Mercado
Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514;

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;
Payadvs. 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.
What has been said makes it unnecessary for us
to determine there is a sufficient recital in the
attestation clause as to the signing of the will by
the testator in the presence of the witnesses, and
by the latter in the presence of the testator and
of each other.
Wherefore, the appealed decision is hereby
affirmed, with against the petitioner. So ordered.