Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 103554 May 28, 1993

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,

AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, represented herein by
his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO
CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of
the Estate of Mateo Caballero, respondents.

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is
the issue of whether or not the attestation clause contained in the last will and testament
of the late Mateo Caballero complies with the requirements of Article 805, in relation to
Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at
his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted
by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the
preparation of that last will. 1 It was declared therein, among other things, that the
testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G.
Cabrera and Marcosa Alcantara, all of whom do not appear to be related to the
testator. 2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed
as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of
Cebu seeking the probate of his last will and testament. The probate court set the
petition for hearing on August 20, 1979 but the same and subsequent scheduled
hearings were postponed for one reason to another. On May 29, 1980, the testator
passed away before his petition could finally be heard by the probate court. 3 On
February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his
appointment as special administrator of the testator's estate, the estimated value of
which was P24,000.00, and he was so appointed by the probate court in its order of
March 6, 1981. 4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,

instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo
Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition intestate proceeding consolidated with Special Proceeding No. 3899-
R in Branch II of the Court of First Instance of Cebu and opposed thereat the probate of
the Testator's will and the appointment of a special administrator for his estate. 5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as special
administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the
return of the records of Special Proceeding No. 3965-R to the archives since the testate
proceeding for the probate of the will had to be heard and resolved first. On March 26,
1984 the case was reraffled and eventually assigned to Branch XII of the Regional Trial
Court of Cebu where it remained until the conclusion of the probate proceedings. 6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testator's will on the
ground that on the alleged date of its execution, the testator was already in the poor
state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public Atty. Filoteo Manigos, testified that the testator executed the will in question in
their presence while he was of sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in good health and was not unduly
influenced in any way in the execution of his will. Labuca also testified that he and the
other witnesses attested and signed the will in the presence of the testator and of each
other. The other two attesting witnesses were not presented in the probate hearing as
the had died by then. 8

On April 5, 1988, the probate court rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero, on the ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors

cannot overcome the positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that indeed Mateo Caballero
 executed the Last Will and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D" clearly underscores the fact
that this was indeed his Last Will. At the start, counsel for the oppositors
manifested that he would want the signature of Mateo Caballero in Exhibit
"C" examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this signature of
Mateo Caballero in Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.

All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance
with all the requisites of the law. 9

Undaunted by the said judgment of the probate court, petitioners elevated the case in
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in
question is null and void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the
trial court, and ruling that the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may

be considered as having substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the attestation clause which
the oppositors claim to be defective is "we do certify that the testament
was read by him and the attestator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in letters of the upper
part of each page, as his Last Will and Testament, and he has signed the
same and every page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said testator and in the
presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be

presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of
one another. Or as the language of the law would have it that the testator
signed the will "in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely or ideally
 perfect in accordance with the wordings of Art. 805 but (sic) the phrase as
formulated is in substantial compliance with the requirement of the law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the
same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a
manner not in accord with the law and settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised before respondent court, the
validity of the attestation clause in the last will of Mateo Caballero.

We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death. 13 Under the Civil Code, there are two kinds of wills which a
testator may execute. 14 the first kind is the ordinary or attested will, the execution of
which is governed by Articles 804 to 809 of the Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.

The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.

The attestation should state the number of pages used upon which the will
is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall

be interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator
and the attesting witness. 15hence it is likewise known as notarial will. Where the
attestator is deaf or deaf-mute, Article 807 requires that he must personally read the will,
if able to do so. Otherwise, he should designate two persons who would read the will
and communicate its contents to him in a practicable manner. On the other hand, if the
testator is blind, the will should be read to him twice; once, by anyone of the witnesses
thereto, and then again, by the notary public before whom it is acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A common requirement in both
kinds of will is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause
likewise need not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause shall be
interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the manner
of the execution the same. 19 It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law has
been observed. 20 It is made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so that in case of failure of
the memory of the attesting witnesses, or other casualty, such facts may still be
proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, 22 should state (1) the number of the pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or
some of its pages and to prevent any increase or decrease in the pages; 23 whereas the
subscription of the signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that the will is the very
same instrument executed by the testator and attested to by the witnesses. 24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. 25 The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure
the authenticity thereof. 26 As it appertains only to the witnesses and not to the testator,
it need be signed only by them. 27 Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses. 28

In its report, the Code Commission commented on the reasons of the law for requiring
the formalities to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on

the law on wills in this Project consists in the liberalization of the manner
of their execution with the end in view of giving the testator more freedom
in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . . 29

2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the
three attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other hand, is recited in the English
language and is likewise signed at the end thereof by the three attesting witnesses
hereto. 30 Since it is the proverbial bone of contention, we reproduce it again for facility
of reference:

We, the undersigned attesting Witnesses, whose Residences and postal

addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of
THREE PAGES, including the Acknowledgment, each page numbered
correlatively in the letters on the upper part of each page, as his Last Will
and Testament and he has the same and every page thereof, on the
spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will is only to write
on the same paper the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done
which the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such paper as the will
which was executed by the testator. As it involves a mental act, there would be no
means, therefore, of ascertaining by a physical examination of the will whether the
witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of

the express requirements of the third paragraph of Article 805 of the Civil Code for
attestation clauses, fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the testator and of
each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed
is the fact that while it recites that the testator indeed signed the will and all its pages in
the presence of the three attesting witnesses and states as well the number of pages
that were used, the same does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the testator
and not the instrumental witnesses as it is immediately preceded by the words "as his
Last Will and Testament." On the other hand, although the words "in the presence of the
testator and in the presence of each and all of us" may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be interpreted as referring only to
the testator signing in the presence of the witnesses since said phrase immediately
follows the words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then clearly lacking, in
the final logical analysis , is the statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal
defect or imperfection which must necessarily result in the disallowance of the will that
is here sought to be admitted to probate. Petitioners are correct in pointing out that the
aforestated defect in the attestation clause obviously cannot be characterized as merely
involving the form of the will or the language used therein which would warrant the
application of the substantial compliance rule, as contemplated in the pertinent provision
thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the form of
 attestation or in the language used therein shall not render the will invalid
if it is not proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805" (Emphasis
supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof
and at the left margin of each page by the three attesting witnesses, it certainly cannot
be conclusively inferred therefrom that the said witness affixed their respective
signatures in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the fact that it was
indeed signed, but it does not prove that the attesting witnesses did subscribe to the will
in the presence of the testator and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur
of effectivity. 33

We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article
809, wherein he urged caution in the application of the substantial compliance rule
therein, is correct and should be applied in the case under consideration, as well as to
future cases with similar questions:

. . . The rule must be limited to disregarding those defects that can be

supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially
appear in the attestation clause, being the only check against perjury in
the probate proceedings. (Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only
be with respect to the form of the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid should it be proved that the will
was really executed and attested in compliance with Article 805. In this regard, however,
the manner of proving the due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to evidence aliunde, whether
oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the
fact that the attesting witnesses signed each and every page of the will in the presence
of the testator and of each other. 35 In such a situation, the defect is not only in the form
or language of the attestation clause but the total absence of a specific element
required by Article 805 to be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no plausible way
by which we can read into the questioned attestation clause statement, or an implication
thereof, that the attesting witness did actually bear witness to the signing by the testator
of the will and all of its pages and that said instrumental witnesses also signed the will
and every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or

relied on by respondents since it presupposes that the defects in the attestation clause
can be cured or supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts not stated in the
omitted textual requirements were actually complied within the execution of the will. In
other words, defects must be remedied by intrinsic evidence supplied by the will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of
views as to which manner of interpretation should be followed in resolving issues
centering on compliance with the legal formalities required in the execution of wills. The
formal requirements were at that time embodied primarily in Section 618 of Act No. 190,
the Code of Civil Procedure. Said section was later amended by Act No. 2645, but the
provisions respecting said formalities found in Act. No. 190 and the amendment thereto
were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in
the case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain
these primordial ends. Nonetheless, it was also emphasized that one must not lose
sight of the fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will, hence when an interpretation already given assures such ends,
any other interpretation whatsoever that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded. The subsequent cases of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson
vs. Abella, 39 Pecson vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve
vs. Mojal, et al. 42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities
that should be observed in the execution of wills are mandatory in nature and are to be
strictly construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of
Neumark, 46and Sano vs. Quintana. 47

Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case of Gumban,
the attestation clause had failed to state that the witnesses signed the will and each and
every page thereof on the left margin in the presence of the testator. The will in question
was disallowed, with these reasons therefor:

In support of their argument on the assignment of error above-mentioned,

appellants rely on a series of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing
with In re Will of Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil.,
841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee
counters with the citation of a series of cases beginning with Abangan vs.
Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924],
46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47
Phil., 152). In its last analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by opposing counsel, namely, those
of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each
and every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs.
Mojal and Aguilar, supra, wherein it was held that the attestation clause
must estate the fact that the testator and the witnesses reciprocally saw
the signing of the will, for such an act cannot be proved by the mere
exhibition of the will, if it is not stated therein. It was also held that the fact
that the testator and the witnesses signed each and every page of the will
can be proved also by the mere examination of the signatures appearing
on the document itself, and the omission to state such evident facts does
not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do

they admit inconsistency in doctrine. Yet here, unless aided impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points

may be mentioned. In the first place, the Mojal, decision was concurred in
 by only four members of the court, less than a majority, with two strong
dissenting opinions; the Quintana decision was concurred in by seven
members of the court, a clear majority, with one formal dissent. In the
second place, the Mojal decision was promulgated in December, 1924,
while the Quintana decision was promulgated in December, 1925; the
Quintana decision was thus subsequent in point of time. And in the third
place, the Quintana decision is believed more nearly to conform to the
applicable provisions of the law.

The right to dispose of property by will is governed entirely by statute. The

law of the case is here found in section 61 of the Code of Civil Procedure
as amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the testator signed
the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses, and
the latter witnessed and signed the will and all pages thereof in the
presence of the testator and of each other." Codal section 634 provides
that "The will shall be disallowed in either of the following case: 1.
If not executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is not within
the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs.

Quintana, supra, and, to the extent necessary, modify the decision in the
case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original
text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court
that once more appeared to revive the seeming diversity of views that was earlier
threshed out therein. The cases of Quinto vs. Morata, 49Rodriguez vs.
Alcala, 50 Enchevarria vs. Sarmiento, 51 and Testate Estate of Toray 52 went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs.
Yap, 57 Grey vs. Fabia, 58 Leynez vs. Leynez, 59 Martir vs. Martir, 60 Alcala vs. De
Villa, 61Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the
strict interpretation rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification of
the substantial compliance rule, as it believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is,
in accordance with the formalities prescribed by Section 618 of the Code
of Civil Procedure as amended by Act No. 2645. The Supreme Court of
the Philippines had previously upheld the strict compliance with the legal
formalities and had even said that the provisions of Section 618 of the
Code of Civil Procedure, as amended regarding the contents of the
attestation clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator in disposing of his
property.

However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution
of wills. This liberal view is enunciated in the cases of Rodriguez vs. Yap,
G.R. No. 45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically

gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To
turn this attitude into a legislative declaration and to attain the main
objective of the proposed Code in the liberalization of the manner of
executing wills, article 829 of the Project is recommended, which reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or

undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial
compliance with all the requirements of article 829." 65

The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with precision.
They do not allow evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a probe into the will,
an exploration into its confines, to ascertain its meaning or to determine the existence or
absence of the requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself. 67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of

respondent court is hereby REVERSED and SET ASIDE. The court a quo is accordingly
directed to forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo Caballero) as an
active case and thereafter duly proceed with the settlement of the estate of the said
decedent.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO

GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.

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

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains
the following attestation clause:

We, the undersigned, by these presents to declare that the foregoing testament
of Antero Mercado was signed by himself and also by us below his name and of
this attestation clause and that of the left margin of the three pages thereof. Page
three the continuation of this attestation clause; this will is written in Ilocano
dialect which is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three pages and all them were
signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO (Sgd.) "ROSENDA

EVANGELISTA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo del testator" and the name of Florentino
Javier. Antero Mercado is alleged to have written a cross immediately after his name.
The Court of Appeals, reversing the judgement of the Court of First Instance of Ilocos
Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all
the left margins of the three pages and at the end of the will by Atty. Florentino Javier at
the express request of the testator in the presence of the testator and each and every
one of the witnesses; (2) to certify that after the signing of the name of the testator by
Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end
thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in
the presence of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the
cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,
81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of
Antero Mercado or even one of the ways by which he signed his name. After mature
reflection, we are not prepared to liken the mere sign of the cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.

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.

Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
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 above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an
the three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will
attest not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin
of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity
of the wig that the signatures of the subscribing witnesses should be specifically located
at the end of the wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the space or
particular location where the signatures are to be found as long as this space or
particular location wherein the signatures are found is consistent with good faith and the
honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed
at its end by the testator himself or by the testator's name written by another person in
his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation
consists in witnessing the testator's execution of the will in order to see and take note
mentally that those things are, done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. On the other hand, subscription is
the signing of the witnesses' names upon the same paper for the purpose of
Identification of such paper as the will which was executed by the testator. (Ragsdale v.
Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that

the will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the
will attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective
permeating the provisions on the law on wills in this project consists in the liberalization
of the manner of their execution with the end in view of giving the testator more freedom
in expressing his last wishes but with sufficient safeguards and restrictions to prevent
the commission of fraud and the exercise of undue and improper pressure and influence
upon the testator. This objective is in accord with the modern tendency in respect to the
formalities in the execution of a will" (Report of the Code commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire wig that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom while
the instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages
including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as

amended by Act No. 2645, which requires that the attestation clause shall
state the number of pages or sheets upon which the win is written, which
requirement has been held to be mandatory as an effective safeguard
against the possibility of interpolation or omission of some of the pages of
the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L.
Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata,
54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must
contain a statement of the number of sheets or pages composing the will
and that if this is missing or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by evidence aliunde, but
 by a consideration or examination of the will itself. But here the situation is
different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body
of the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator
from being defeated by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach:

... Impossibility of substitution of this page is assured not only (sic) the fact
that the testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness
over whose conduct she had no control where the purpose of the law to
guarantee the Identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the
will by muddling or bungling it or the attestation clause.

WHEREFORE, the present petition is hereby granted. The orders of the respondent
court which denied the probate of tile will, the motion for reconsideration of the denial of
probate, and the motion for appointment of a special administrator are set aside. The
respondent court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on costs.

SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.

Teehankee, J, is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-31400 August 31, 1971

VICTORIO DAISUG, petitioner,

vs.
HON. COURT OF APPEALS, and FLORO SACAY, VICTORIA DUCALANG and
FRUCTOSO DUCALANG, respondents.

Cristobal S. Mendiola for petitioner.

Cecilia S. Rivera for private respondents.

BARREDO, J.:

Appeal via certiorari from the resolution of the Court of Appeals in its CA-G.R. No.
37318-R, dated September 16, 1969, reading as follows:

The Rollo of this case reveals that on July 12, 1969 we granted defendant-
appellant a period of thirty (30) days (instead of the forty (40) days prayed
for by appellant in his motion for first extension dated June 28, 1969) from
July 2, 1969 to file appellant's brief or until August 1, 1969. On August 5,
1969, or four (4) days after the period authorized by this Court to appellant
to file his brief has expired, defendant-appellant, through counsel, registry
mailed a motion praying for a second extension of 30 days from August 11,
1969.

WHEREFORE, the motion of defendant-appellant dated Aug. 5, 1969

praying for a second extension of 30 days, having been filed four (4) days
after the period sought to be extended has expired, is hereby denied and
the present appeal of defendant-appellant is ordered dismissed.

SO ORDERED.

JOSE
S.
RODR
IGUE
Z

WE CONCUR:

NICASIO A. YATCO JOSE N. MENDOZA

It appears that in Civil Case No. 646-0 of the Court First Instance of Leyte, which is for
the recovery of possession and partition of several parcels of land plus damages,
judgment was rendered in favor of therein plaintiffs, now private respondents, and
against the defendant, herein petitioner, on November 18, 1965. On December 20,
1965, petitioner filed a "Motion to Set Aside the Judgement and To Grant Defendant a
New Trial" which the court a quodenied in its order of December 28, 1965. From that
order, petitioner appealed to the Court of Appeals where said appeal was docketed as
CA-G.R. No.
37318-R.

When the case was already in the appellate court and after the period for filing
appellant's brief had started, the then counsel for petitioner was appointed Judge of the
Court of First Instance of Bohol, for which reason he formally withdrew his appearance
as such counsel and asked for time, 45 days from notice of the court's resolution, for
petitioner to look for new counsel and to file the brief because he anticipated that the
new counsel would need an additional period to file the same. In a resolution dated April
21, 1969, the Court of Appeals granted withdrawing counsel's motion and gave
petitioner the period of 45 days prayed for. Copy of said resolution was received by
petitioner on May 19, 1969. On June 10, 1969, or twenty-two (22) days after receipt of
the said resolution by petitioner's withdrawing counsel, a new lawyer formally entered
his appearance as counsel for petitioner in the case. Nineteen days thereafter or on
June 29, 1969, said new counsel filed his own motion for extension of time to file
petitioner's brief, specifying that the extension period be of FORTY (40) DAYS to start
from July 2, 1969. Acting on this motion, on July 12, 1969, the Court of Appeals
resolved as follows:

Upon motion by defendant-appellant, the Court RESOLVED TO GRANT a

first extension of 30 days from July 2, 1969 within which to file appellant's
brief.

Four (4) days after the expiration of the extended period granted in the above-quoted
resolution, but before said new counsel could receive copy thereof and know therefrom
that he had been granted only thirty days, the same counsel filed another motion for
extension of time within which to file his brief; and, allegedly, it was only in the latter part
of that day (11:00 a.m.) that he received copy of the above resolution, hence his
"Manifestation" of even date asking the court that the additional 30-day period
requested in his later motion for extension be made to start from August 1, 1969 and not
from August 11, 1969 as stated therein. Subsequently, and without even inquiring about
the fate of these motions, counsel filed on August 20 and September 8, respectively,
two other motions for extension, the former for 20 days from August 29 and the latter for
10 days from the expiration of the last extension. In the meanwhile, on September 8,
1969, the same date he filed his last motion, the Vera Printing Press actually filed
printed copies of the brief with the appellate court. Evidently, counsel did not hear from
the court until October 1, 1969, when he received a copy of the appealed resolution
aforequoted. He moved for reconsideration, but the same was denied; hence the
present petition wherein it is claimed that:
 I. THE HONORABLE COURT OF APPEALS ERRED IN ORDERING THE
DISMISSAL OF PETITIONER'S APPEAL IN CA-G.R. No. 37318-R,
CONSIDERING THAT BEFORE THE RECEIPT OF PETITIONER OF
THE RESOLUTION OF HIS FIRST MOTION FOR EXTENSION OF TIME
TO FILE APPELLANT'S BRIEF GRANTING HIM THIRTY (30) DAYS
INSTEAD OF FORTY DAYS AS PRAYED FOR IN THE MOTION,
PETITIONER HAD ALREADY MAILED HIS SECOND MOTION FOR
EXTENSION OF TIME TO FILE SAID APPELLANTS BRIEF;

II. THAT THE HONORABLE COURT OF APPEALS ERRED IN NOT

GIVING DUE COURSE OF THE APPEAL CONSIDERING THAT ON
SEPTEMBER 8, 1969, PETITIONER HAD FILED HIS BRIEF WITH THE
SAID COURT AND THE ORDER OF DISMISSAL WAS ONLY MADE
MORE THAN A WEEK AFTER, OR ON SEPTEMBER 16, 1969; and

III. THAT PETITIONER'S EVIDENCES ARE STRONG, AND IF HIS

APPEAL WILL BE GIVEN DUE COURSE, THE DECISION OF THE
TRIAL COURT WOULD MOST PROBABLY BE REVERSED, OR SET
ASIDE, AND THE CASE BE REMANDED TO THE TRIAL COURT FOR
THE FURTHER RECEPTION OF EVIDENCE OF THE PETITIONER.

We find no merit in the petition. The situation here presented closely resembles the
following factual setting found by this Court in Razalan vs. Concepcion: 1

On February 4, 1968, petitioners filed a motion for extension of 30 days to

file said brief. In a resolution, dated February 10, 1968, petitioners were
granted said extension, beginning "from February 23, 1968." On March 21,
1968, petitioners moved for a second extension of 30 days from March 23,
1968, to file said brief, but the Court of Appeals granted merely an
extension of 20 days beginning from March 24, 1968 and, accordingly,
ending on April 13, 1968. Notice of the resolution to this effect was issued
by the Court of Appeals on April 4, 1968, but it was not mailed until April
17, 1968. Petitioners claim to have received this notice on April 23, 1968.
Three (3) days prior thereto, or on April 20, 1968, they moved for a third
extension of 30 days from April 22, 1968, to file their brief. This motion
was received by the Court of Appeals on April 27, 1968. It having been, in
legal contemplation, filed on April 20, 1968, or seven (7) days after the
expiration of the second extension of 20 days granted by the Court of
Appeals, the same dismissed the appeal taken by petitioners herein.

A reconsideration of the resolution of dismissal having been denied,

petitioners commenced the present action against the Concepcions and
the Court of Appeals, upon the ground that the latter had acted with grave
abuse of discretion in dismissing their (petitioners') aforementioned appeal.
This contention is predicated upon the fact that notice of the resolution of
the Court of Appeals, dated April 4, 1968, granting them a second
 extension of 20 days from March 24, 1968, had not been mailed until April
17, 1968, or four (4) days after the expiration of said extension on April 13,
1968, and was not received by them until April 23, 1968, or 10 days after
the expiration of said period.

Upon these facts, We then ruled that:

Pursuant to Section 15 of Rule 46 of the Rules of Court, "(e)xtension of

time for the filing of briefs will not be allowed, except for good and
sufficient cause, and only if the motion for extension is filed before the
expiration of the time sought to be expanded." Petitioners' motion for a
second extension states that their brief "has already been finally drafted,
the same is now with a printing press for printing." The brief filed by
petitioners on May 9, 1968, consisted of 39 pages only, including its table
of contents. Any practising lawyer knows that twenty (20) days are more
than sufficient to complete the printing of a brief of such length, including
its proofreading. Still, petitioners filed it, neither within said period of 20
days nor within the 30 days requested by them.

Besides, in Yabut vs. Ventura (77 Phil. 493, 495. Emphasis ours), this
Court held:

"There was no justification for defendants-appellants'

attorney to take for granted that he would be given, or had
been given, the entire period of extension he had asked for.
Neither the pertinent provision of the Rules of Court nor the
practice of this court could have inspired reassurance of a
favorable action on his motion to its full extent. Far from
favoring automatic or indiscriminate granting of extensions of
time to file brief, the rule and the policy of this Court on the
matter bear a marked tendency to make such concessions
sparingly. Section 16 of Rule 48 of the Rules of Court
provides that "extension of time for the filing of brief
will not be allowed, except for good and sufficient cause."
And the policy of many years' standing of this court is to
grant no more than 15 days for first extension and 10 days
for second extension."

This view has been reiterated in a number of subsequent cases, some of

which are cited on the margin (Republic vs. People's Surety and Insurance
Company, L-16780, May 31, 1961; National Lumber & Hardware Co. v.
Velasco, 106 Phil. 1098; Wack Wack Golf & Country Club v. Court of
Appeals, 106 Phil. 501; Benares Montelibano vs. Benares, 103 Phil. 106;
Parina v. Cobangbang, L-8398, March 21, 1956).
In the case at bar, petitioner's original period to file his brief started before his original
counsel asked for permission to withdraw, and upon the request of said counsel,
petitioner was given an additional period of forty-five (45) days from notice within which
to look for new counsel and file his brief. After twenty-two (22) days of this period has
elapsed, a new counsel entered his appearance, only to file nineteen days thereafter,
what was virtually already a second motion for extension of the period to file petitioner's
brief. He asked for forty (40 days from July 2, 1969, or, in effect, a total period of sixty-
three (63) days from the date of his first appearance.

Under these circumstances, We cannot say that the Court of Appeals acted so
improperly or has so far departed from the accepted and orderly course of judicial
proceedings as to call for the exercise of the power of supervision of this Court. On the
contrary, the appellate court merely acted pursuant to the afore-quoted doctrine in
Razalan. Besides, in issuing the questioned resolutions, the appellate court merely
adhered, even in a manner more liberally in favor of petitioner, to said Court's
general en banc Resolution No. 8 of January 3, 1963, quoted in respondent's brief (pp.
4-5) prescribing uniform rules for the extension of the time for filing of briefs as follows:

A first extension of thirty (30) days;

A second extension of twenty (20) days;

A third extension of ten (10) days;

A fourth extension of five (5) days; etc.

As already pointed out above, petitioner's motion of June 29, 1969, was virtually for a
second extension on his behalf hence, counsel ought to have known that under
Resolution No. 8 just quoted, he could not expect the Court to give him an extension of
more than twenty (20) days. And even if it may be argued that it was the first extention
the new counsel was asking for, still his maximum would have been only thirty (30) days
instead of the forty (40) days he had asked. Aside from the fact that, as just explained,
counsel not only did not have any basis for expecting that the Court would grant his
motion for 40 days rather, he ought to have known the terms of above Resolution No. 8,
under which the maximum he could be given is 30 days, We want to reiterate and
emphasize Our ruling expressed in the cases cited in Rasalan, aforequoted, that no
party should assume that his motion for extension will be granted, for, to start with,
notwithstanding the rules of convenience such as above-mentioned Resolution No. 8 of
the Court of Appeals, the granting of any extension of time to parties for compliance
with any rule or order is not a matter of right but of sound judicial discretion. The Court
notes that inspite of its abovecited repeated pronouncements, there are still parties who
would regard them lightly. Naturally, such attitude can only be condemned and such
parties must suffer the consequences of their indifference.

We have gone over the record on appeal and even the briefs of the parties in the Court
of Appeals, and We do not find therein any circumstance which could warrant some
measure of liberallity or leniency to petitioner. Quite the other way, the decision of the
trial judge decried the fact that not only had petitioner failed to comply with orders of the
Court intended to accelerate proceedings but had also succeeded in, postponing the
hearings for at least fifteen times on more or less trivial grounds. Nor is there any clear
showing here by petitioner of any substantial error committed by the trial judge in his
judgment.

IN VIEW OF ALL THE FOREGOING, the resolution of the Court of Appeals appealed
from is affirmed, with costs against petitioner.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee,

Villamor and Makasiar, JJ., concur.

Dizon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18979 June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano,
the person named therein as such.

This special proceeding was begun on October 2, 1958 by a petition for the allowance
and admission to probate of the original, Exhibit "A" as the alleged will of Josefa
Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as executor
thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice
thereof to be published for three (3) successive weeks, previous to the time appointed,
in the newspaper "Manila chronicle", and also caused personal service of copies thereof
upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust Company as special
administrator. 1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended and
supplemental petition, alleging that the decedent left a will executed in duplicate with all
the legal requirements, and that he was, on that date, submitting the signed duplicate
(Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On June 17,
1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint
opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor
Natividad Icasiano filed her amended opposition. Thereafter, the parties presented their
respective evidence, and after several hearings the court issued the order admitting the
will and its duplicate to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground that the same is
contrary to law and the evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in
the City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa
Villacorte executed a last will and testament in duplicate at the house of her daughter
Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before and attested by
three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by
the said three instrumental witnesses on the same date before attorney Jose Oyengco
Ong, Notary Public in and for the City of Manila; and that the will was actually prepared
by attorney Fermin Samson, who was also present during the execution and signing of
the decedent's last will and testament, together with former Governor Emilio Rustia of
Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament, attorneys Torres
and Natividad were in the Philippines at the time of the hearing, and both testified as to
the due execution and authenticity of the said will. So did the Notary Public before
whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified
upon cross examination that he prepared one original and two copies of Josefa
Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only
one original and one signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously
with the filing of the petition and marked as Exhibit "A" consists of five pages, and while
signed at the end and in every page, it does not contain the signature of one of the
attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is
signed by the testatrix and her three attesting witnesses in each and every page.

The testimony presented by the proponents of the will tends to show that the original of
the will and its duplicate were subscribed at the end and on the left margin of each and
every page thereof by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three (3) of the original);
that pages of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the facts required by law to be recited therein and
is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also
known to and spoken by the witnesses; that the will was executed on one single
occasion in duplicate copies; and that both the original and the duplicate copies were
duly acknowledged before Notary Public Jose Oyengco of Manila on the same date
June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original,
admits that he may have lifted two pages instead of one when he signed the same, but
affirmed that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the

signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they
written or affixed on the same occasion as the original, and further aver that granting
that the documents were genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to benefit from the provisions of the
will, as may be inferred from the facts and circumstances surrounding the execution of
the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not
enumerated or mentioned therein, while oppositors-appellants are enjoined not to look
for other properties not mentioned in the will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary
public who acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a language known
to and spoken by both the testator and the witnesses, and read to and by the testatrix
and Atty. Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the
testatrix appearing in the duplicate original were not written by the same had which
wrote the signatures in the original will leaves us unconvinced, not merely because it is
directly contradicted by expert Martin Ramos for the proponents, but principally because
of the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact, used as standards only
three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and the
signatures in the duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to show
convincingly that the are radical differences that would justify the charge of forgery,
taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original.
These, factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different surfaces and
reflecting power. On the whole, therefore, we do not find the testimony of the oppositor's
expert sufficient to overcome that of the notary and the two instrumental witnesses,
Torres and Natividad (Dr. Diy being in the United States during the trial, did not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs
are more favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao
vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is
the usual reason for making a testament; otherwise, the decedent might as well die
intestate. The testamentary dispositions that the heirs should not inquire into other
property and that they should respect the distribution made in the will, under penalty of
forfeiture of their shares in the free part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the estate being diverted into
the hands of non-heirs and speculators. Whether these clauses are valid or not is a
matter to be litigated on another occassion. It is also well to note that, as remarked by
the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence
are mutually repugnant and exclude each other; their joining as grounds for opposing
probate shows absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament
and its component pages is sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479
(decision on reconsideration) "witnesses may sabotage the will by muddling or bungling
it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure
oversight is shown by his own testimony as well as by the duplicate copy of the will,
which bears a complete set of signatures in every page. The text of the attestation
clause and the acknowledgment before the Notary Public likewise evidence that no one
was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application
of the statutory requirements, where the purposes of the law are otherwise satisfied.
Thus, despite the literal tenor of the law, this Court has held that a testament, with the
only page signed at its foot by testator and witnesses, but not in the left margin, could
nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the
requirement for the correlative lettering of the pages of a will, the failure to make the first
page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429).
These precedents exemplify the Court's policy to require satisfaction of the legal
requirements in order to guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available,
the duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of
original because it lacked one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is defective and invalid,
then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and the
same is probatable. If the original is valid and can be probated, then the objection to the
signed duplicate need not be considered, being superfluous and irrelevant. At any rate,
said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the
third page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new
publication does not affect the jurisdiction of the probate court, already conferred by the
original publication of the petition for probate. The amended petition did not substantially
alter the one first filed, but merely supplemented it by disclosing the existence of the
duplicate, and no showing is made that new interests were involved (the contents of
Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the
proposed amendment. It is nowhere proved or claimed that the amendment deprived
the appellants of any substantial right, and we see no error in admitting the amended
petition.

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs
against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Regala and
Makalintal, JJ., concur.
Barrera and Dizon, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,

vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.

Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.

PUNO, J.:

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the
Court of appeals 1 in CA-G.R. CV No. 19071, disallowing probate of the Last Will and
Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976.

The records show that decedent left behind nine thousand pesos (P9,000.00) worth of
property. She also left a Last Will and Testament, dated October 30, 1972, and a Codicil
thereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent.
They were also signed by three (3) attesting witnesses each, and acknowledged before
Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt.
Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before
the RTC of Bontoc, Mt. Province, Br. 36. 2 He died during the pendency of the
proceedings, and was duly substituted by petitioner. Private respondents, relatives of
decedent, opposed the Petitioner filed by Calde, on the following grounds: that the will
and codicil were written in Ilocano, a dialect that decedent did not know; that decedent
was mentally incapacitated to execute the two documents because of her advanced age,
illness and deafness; that decedents thumbmarks were procured through fraud and
undue influence; and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and
allowing decedents will and its codicil. The decision was appealed to and reversed by
the respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of
the New Civil Code but for one crucial factor of discrepancy in the color of
ink when the instrumental witnesses affixed their respective signatures.
When subjected to cross-examination, Codcodio Nacnas as witness
testified as follows:

Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1",
Exhibit "B" and "B-1" which is the testament was passed
around all of you so that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign I

withdraw the question. How did Calibia Lingdan Bulanglang
sign the last will and testament?

A She asked Judge Tolete the place where she will affix her
thumbmark so Judge Tolete directed her hand or her thumb
to her name.

Q After she signed, who was the second to sign allegedly all
of you there present?

A Jose Becyagen.

Q With what did Jose Becyagen sign the testament, Exhibit

"B" and "B-1"?

A Ballpen.

Q And after Jose Becyagen signed his name with the

ballpen, who was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen,
Exhibit "B" and "B-1" plus the ballpen which used to sign so
that you could sign your name, is that correct?

A Yes, sir.

Q And then after you signed, who was the next to sign the
document, Exhibit "B" and "B-1"?

A Hilario Coto-ong.
 Q So you passed also to Hilario Coto-ong the same Exhibit
"B" and "B-1" and the ballpen so that he could sign his name
as witness to the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truth
before the Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination

in regard to the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all sign
with the same ballpen?

A One.

Such admissions from instrumental witnesses are indeed significant since

they point to no other conclusion than that the documents were not signed
by them in their presence but on different occasions since the same
ballpen used by them supposedly in succession could not have produced
a different color from blue to black and from black to blue. In fact, the
attestation clause followed the same pattern. The absurd sequence was
repeated when they signed the codicil, for which reason, We have no
other alternative but to disallow the Last Will and Codicil. Verily, if the
witnesses and testatrix used the same ballpen, then their signatures would
have been in only one color, not in various ones as shown in the
documents. Moreover, the signatures, in different colors as they are,
appear to be of different broadness, some being finer than the others,
indicating that, contrary to what the testamentary witnesses declared on
the witness stand, not only one ballpen was used, and, therefore, showing
that the documents were not signed by the testatrix and instrumental
witnesses in the presence of one another. . . " (Rollo, pp. 44-46. Citations
omitted.)
Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His
motion was denied by the respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent
courts conclusion that both decedents will and codicil were not subscribed by the
witnesses in the presence of the testator and of one another, contrary to the
requirements of Article 805 of the Civil Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HAS DECIDED A

QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW
OR WITH THE APPLICABLE DECISION OF THE SUPREME COURT BY
CONCLUDING BASED ON PURE SPECULATION OR SURMISES AND
WITHOUT REGARD TO THE TESTIMONY OF JUDGE TOLETE WHICH
IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND THE CODICIL
OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY
HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT
OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A

QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW
OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT
BY DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION
CLAUSES OF THE LAST WILL AND TESTAMENT AND THE CODICIL
OF THE LATE CALIBIA LINGDAN BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence
submitted, respondent appellate court erred in concluding that both decedents Last Will
and Testament, and its Codicil were subscribed by the instrumental witnesses on
separate occasions. As a general rule, factual findings of the Court of Appeals are
considered final and conclusive, and cannot be reviewed on appeal to this court. In the
present instance, however, there is reason to make an exception to that rule, since the
finding of the respondent court is contrary to that of the trial court, viz.:

. . . (Private respondents) pointed out however, that the assertions of

petitioners witnesses are rife with contradictions, particularly the fact that
the latters signatures on the documents in issue appear to have been
written in ballpens of different colors contrary to the statements of said
witnesses that all of them signed with only one ballpen. The implication is
that the subscribing witnesses to the Will and Codicil, and the testatrix did
not simultaneously sign each of the documents in one sitting but did it
piecemeal a violation of Art. 805 of the Code. This conclusion of the
(private respondents) is purely circumstantial. From this particular set of
facts, numerous inferences without limits can be drawn depending on
which side of the fence one is on. For instance, considering the time
 interval that elapsed between the making of the Will and Codicil, and up to
the filing of the petition for probate, the possibility is not remote that one or
two of the attesting witnesses may have forgotten certain details that
transpired when they attested the documents in question . . . (Rollo, pp.
36-37.)

A review of the facts and circumstances upon which respondent Court of Appeals based
its impugned finding, however, fails to convince us that the testamentary documents in
question were subscribed and attested by the instrumental witnesses during a single
occasion.

As sharply noted by respondent appellate court, the signatures of some attesting

witnesses in decedents will and its codicil were written in blue ink, while the others were
in black. This discrepancy was not explained by petitioner. Nobody of his six (6)
witnesses testified that two pens were used by the signatories on the two documents. In
fact, two (2) of petitioners witnesses even testified that only one (1) ballpen was used in
signing the two testamentary documents.

It is accepted that there are three sources from which a tribunal may properly acquire
knowledge for making its decisions, namely: circumstantial evidence, testimonial
evidence, and real evidence or autoptic proference. Wigmore explains these sources as
follows:

If, for example, it is desired to ascertain whether the accused has lost his
right hand and wears an iron hook in place of it, one source of belief on
the subject would be the testimony of a witness who had seen the arm; in
believing this testimonial evidence, there is an inference from the human
assertion to the fact asserted. A second source of belief would be the
mark left on some substance grasped or carried by the accused; in
believing this circumstantial evidence, there is an inference from the
circumstance to the thing producing it. A third source of belief remains,
namely, the inspection by the tribunal of the accuseds arm. This source
differs from the other two in omitting any step of conscious inference or
reasoning, and in proceeding by direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all,
a third source of inference, i.e., an inference from the impressions or
perceptions of the tribunal to the objective existence of the thing perceived.
The law does not need and does not attempt to consider theories of
psychology as to the subjectivity of knowledge or the mediateness of
perception. It assumes the objectivity of external nature; and, for the
purposes of judicial investigation, a thing perceived by the tribunal as
existing does exist.

There are indeed genuine cases of inference by the tribunal from things
perceived to other things unperceived as, for example, from a persons
 size, complexion, and features, to his age; these cases of a real use of
inference can be later more fully distinguished . . . But we are here
concerned with nothing more than matters directly perceived for
example, that a person is of small height or is of dark complexion; as to
such matters, the perception by the tribunal that the person is small or
large, or that he has a dark or light complexion, is a mode of acquiring
belief which is independent of inference from either testimonial or
circumstantial evidence. It is the tribunals self-perception, or autopsy, of
the thing itself.

From the point of view of the litigant party furnishing this source of belief, it
may be termed Autoptic Proference. 3 (Citations omitted.)

In the case at bench, the autoptic proference contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the respondent court,
show in black and white or more accurately, in black and blue that more than one
pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for
respondent court to disbelieve petitioners claim that both testamentary documents in
question were subscribed to in accordance with the provisions of Art. 805 of the Civil
Code.

Neither did respondent court err when it did not accord great weight to the testimony of
Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two
testamentary documents were subscribed and attested to, starting from decedents
thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Toletes testimony is there any kind
of explanation for the different-colored signatures on the testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of
respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071
disallowing the Last Will and Testament, and the Codicil thereto, of the decedent Calibia
Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT

THIRD DIVISION
G.R. No. 157451 December 16, 2005

LETICIA VALMONTE ORTEGA, Petitioner,

vs.
JOSEFINA C. VALMONTE, Respondent.

DECISION

PANGANIBAN, J.:

The law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the will.

The Case

Before the Court is a Petition for Review1 under Rule 45 of the Rules of Court, seeking
to reverse and set aside the December 12, 2002 Decision2 and the March 7, 2003
Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 44296. The assailed
Decision disposed as follows:

"WHEREFORE, the appeal is GRANTED, and the Decision appealed from

is REVERSED and SET ASIDE. In its place judgment is rendered approving and
allowing probate to the said last will and testament of Placido Valmonte and ordering
the issuance of letters testamentary to the petitioner Josefina Valmonte. Let this case
be remanded to the court a quo for further and concomitant proceedings."4

The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts

The facts were summarized in the assailed Decision of the CA, as follows:

"x x x: Like so many others before him, Placido toiled and lived for a long time in the
United States until he finally reached retirement. In 1980, Placido finally came home to
stay in the Philippines, and he lived in the house and lot located at #9200 Catmon St.,
San Antonio Village, Makati, which he owned in common with his sister Ciriaca
Valmonte and titled in their names in TCT 123468. Two years after his arrival from the
United States and at the age of 80 he wed Josefina who was then 28 years old, in a
ceremony solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. But in a little
more than two years of wedded bliss, Placido died on October 8, 1984 of a cause
written down as COR PULMONALE.

"Placido executed a notarial last will and testament written in English and consisting of
two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The
first page contains the entire testamentary dispositions and a part of the attestation
clause, and was signed at the end or bottom of that page by the testator and on the left
hand margin by the three instrumental witnesses. The second page contains the
continuation of the attestation clause and the acknowledgment, and was signed by the
witnesses at the end of the attestation clause and again on the left hand margin. It
provides in the body that:

LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE

LORD AMEN:

I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a

resident of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being of
sound and disposing mind and memory, do hereby declare this to be my last will and
testament:

1. It is my will that I be buried in the Catholic Cemetery, under the auspices of the
Catholic Church in accordance with the rites and said Church and that a suitable
monument to be erected and provided my by executrix (wife) to perpetuate my memory
in the minds of my family and friends;

2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half
(1/2) portion of the follow-described properties, which belongs to me as [co-owner]:

a. Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati,
Metro Manila, described and covered by TCT No. 123468 of the Register of Deeds of
Pasig, Metro-Manila registered jointly as co-owners with my deceased sister (Ciriaca
Valmonte), having share and share alike;

b. 2-storey building standing on the above-described property, made of strong and

mixed materials used as my residence and my wife and located at No. 9200 Catmon
Street, Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati,
Metro-Manila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself
as co-owners, share and share alike or equal co-owners thereof;

3. All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all
others whatsoever and wherever found, I give, devise and bequeath to my said wife,
Josefina C. Valmonte;

4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in
Quezon City, Philippines.

"The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the USA;

2. Petitioner failed to state the names, ages, and residences of the heirs of the testator;
or to give them proper notice pursuant to law;

3. Will was not executed and attested as required by law and legal solemnities and
formalities were not complied with;

4. Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;

5. Will was executed under duress, or the influence of fear or threats;

6. Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or

7. Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;

and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.

"At the hearing, the petitioner Josefina testified and called as witnesses the notary
public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental
witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.

"According to Josefina after her marriage with the testator they lived in her parents
house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his
$366.00 monthly pension and stayed at the said Makati residence. There were times
though when to shave off on expenses, the testator would travel alone. And it was in
one of his travels by his lonesome self when the notarial will was made. The will was
witnessed by the spouses Eugenio and Feliza Gomez, who were their wedding
sponsors, and by Josie Collado. Josefina said she had no knowledge of the existence of
the last will and testament of her husband, but just serendipitously found it in his attache
case after his death. It was only then that she learned that the testator bequeathed to
her his properties and she was named the executrix in the said will. To her estimate, the
value of property both real and personal left by the testator is worth more or less
P100,000.00. Josefina declared too that the testator never suffered mental infirmity
because despite his old age he went alone to the market which is two to three
kilometers from their home cooked and cleaned the kitchen and sometimes if she could
not accompany him, even traveled to Manila alone to claim his monthly pension.
Josefina also asserts that her husband was in good health and that he was hospitalized
only because of a cold but which eventually resulted in his death.
"Notary Public Floro Sarmiento, the notary public who notarized the testators will,
testified that it was in the first week of June 1983 when the testator together with the
three witnesses of the will went to his house cum law office and requested him to
prepare his last will and testament. After the testator instructed him on the terms and
dispositions he wanted on the will, the notary public told them to come back on June 15,
1983 to give him time to prepare it. After he had prepared the will the notary public kept
it safely hidden and locked in his drawer. The testator and his witnesses returned on the
appointed date but the notary public was out of town so they were instructed by his wife
to come back on August 9, 1983, and which they did. Before the testator and his
witnesses signed the prepared will, the notary public explained to them each and every
term thereof in Ilocano, a dialect which the testator spoke and understood. He likewise
explained that though it appears that the will was signed by the testator and his
witnesses on June 15, 1983, the day when it should have been executed had he not
gone out of town, the formal execution was actually on August 9, 1983. He reasoned
that he no longer changed the typewritten date of June 15, 1983 because he did not like
the document to appear dirty. The notary public also testified that to his observation the
testator was physically and mentally capable at the time he affixed his signature on the
will.

"The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza
Gomez at GSIS Village, Quezon City and requested them to accompany him to the
house of Atty. Floro Sarmiento purposely for his intended will; that after giving his
instructions to Atty. Floro Sarmiento, they were told to return on June 15, 1983; that
they returned on June 15, 1983 for the execution of the will but were asked to come
back instead on August 9, 1983 because of the absence of the notary public; that the
testator executed the will in question in their presence while he was of sound and
disposing mind and that he was strong and in good health; that the contents of the will
was explained by the notary public in the Ilocano and Tagalog dialect and that all of
them as witnesses attested and signed the will in the presence of the testator and of
each other. And that during the execution, the testators wife, Josefina was not with
them.

"The oppositor Leticia declared that Josefina should not inherit alone because aside
from her there are other children from the siblings of Placido who are just as entitled to
inherit from him. She attacked the mental capacity of the testator, declaring that at the
time of the execution of the notarial will the testator was already 83 years old and was
no longer of sound mind. She knew whereof she spoke because in 1983 Placido lived in
the Makati residence and asked Leticias family to live with him and they took care of
him. During that time, the testators physical and mental condition showed deterioration,
aberrations and senility. This was corroborated by her daughter Mary Jane Ortega for
whom Placido took a fancy and wanted to marry.

"Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces
the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and
attestation of the will; and

2. Mental incapacity of the testator at the time of the execution of the will as he was then
in an advanced state of senility

"It then found these grounds extant and proven, and accordingly disallowed probate."5

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte to
probate. The CA upheld the credibility of the notary public and the subscribing
witnesses who had acknowledged the due execution of the will. Moreover, it held that
the testator had testamentary capacity at the time of the execution of the will. It added
that his "sexual exhibitionism and unhygienic, crude and impolite ways"6 did not make
him a person of unsound mind.

Hence, this Petition.7

Issues

Petitioner raises the following issues for our consideration:

"I.

Whether or not the findings of the probate court are entitled to great respect.

"II.

Whether or not the signature of Placido Valmonte in the subject will was procured by
fraud or trickery, and that Placido Valmonte never intended that the instrument should
be his last will and testament.

"III.

Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will."8

In short, petitioner assails the CAs allowance of the probate of the will of Placido
Valmonte.

This Courts Ruling

The Petition has no merit.

Main Issue:
Probate of a Will

At the outset, we stress that only questions of law may be raised in a Petition for Review
under Section 1 of Rule 45 of the Rules of Court. As an exception, however, the
evidence presented during the trial may be examined and the factual matters resolved
by this Court when, as in the instant case, the findings of fact of the appellate court
differ from those of the trial court.9

The fact that public policy favors the probate of a will does not necessarily mean that
every will presented for probate should be allowed. The law lays down the procedures
and requisites that must be satisfied for the probate of a will.10 Verily, Article 839 of the
Civil Code states the instances when a will may be disallowed, as follows:

"Article 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should
be his will at the time of affixing his signature thereto."

In the present case, petitioner assails the validity of Placido Valmontes will by imputing
fraud in its execution and challenging the testators state of mind at the time.

Existence of Fraud in the

Execution of a Will

Petitioner does not dispute the due observance of the formalities in the execution of the
will, but maintains that the circumstances surrounding it are indicative of the existence
of fraud. Particularly, she alleges that respondent, who is the testators wife and sole
beneficiary, conspired with the notary public and the three attesting witnesses in
deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the
execution and the attestation of the will.

Petitioner contends that it was "highly dubious for a woman at the prime of her young
life [to] almost immediately plunge into marriage with a man who [was] thrice her age x x
x and who happened to be [a] Fil-American pensionado,"11 thus casting doubt on the
intention of respondent in seeking the probate of the will. Moreover, it supposedly
"defies human reason, logic and common experience"12 for an old man with a severe
psychological condition to have willingly signed a last will and testament.

We are not convinced. Fraud "is a trick, secret device, false statement, or pretense, by
which the subject of it is cheated. It may be of such character that the testator is misled
or deceived as to the nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for the fraud, he would not have made."13

We stress that the party challenging the will bears the burden of proving the existence
of fraud at the time of its execution.14 The burden to show otherwise shifts to the
proponent of the will only upon a showing of credible evidence of fraud.15 Unfortunately
in this case, other than the self-serving allegations of petitioner, no evidence of fraud
was ever presented.

It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will.16 That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty years his
junior, as the sole beneficiary; and disregarded petitioner and her family, who were the
ones who had taken "the cudgels of taking care of [the testator] in his twilight years."17

Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, "because the law does not even
require that a [notarial] will x x x be executed and acknowledged on the same
occasion."18 More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the
testator and of one another.19Furthermore, the testator and the witnesses must
acknowledge the will before a notary public.20 In any event, we agree with the CA that
"the variance in the dates of the will as to its supposed execution and attestation was
satisfactorily and persuasively explained by the notary public and the instrumental
witnesses."21

The pertinent transcript of stenographic notes taken on June 11, 1985, November 25,
1985, October 13, 1986, and October 21, 1987 -- as quoted by the CA -- are
reproduced respectively as follows:

"Atty. Floro Sarmiento:

Q You typed this document exhibit C, specifying the date June 15 when the testator and
his witnesses were supposed to be in your office?

A Yes sir.

Q On June 15, 1983, did the testator and his witnesses come to your house?
A They did as of agreement but unfortunately, I was out of town.

xxxxxxxxx

Q The document has been acknowledged on August 9, 1983 as per acknowledgement

appearing therein. Was this the actual date when the document was acknowledged?

A Yes sir.

Q What about the date when the testator and the three witnesses affixed their
respective signature on the first and second pages of exhibit C?

A On that particular date when it was acknowledged, August 9, 1983.

Q Why did you not make the necessary correction on the date appearing on the body of
the document as well as the attestation clause?

A Because I do not like anymore to make some alterations so I put it in my own

handwriting August 9, 1983 on the acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:

Q It appears on the first page Mr. Witness that it is dated June 15, 1983, whereas in the
acknowledgement it is dated August 9, 1983, will you look at this document and tell us
this discrepancy in the date?

A We went to Atty. Sarmiento together with Placido Valmonte and the two witnesses;
that was first week of June and Atty. Sarmiento told us to return on the 15th of June but
when we returned, Atty. Sarmiento was not there.

Q When you did not find Atty. Sarmiento on June 15, 1983, did you again go back?

A We returned on the 9th of August and there we signed.

Q This August 9, 1983 where you said it is there where you signed, who were your
companions?

A The two witnesses, me and Placido Valmonte. (tsn, November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:

Q Why did you have to go to the office of Atty. Floro Sarmiento, three times?

xxxxxxxxx
A The reason why we went there three times is that, the first week of June was out first
time. We went there to talk to Atty. Sarmiento and Placido Valmonte about the last will
and testament. After that what they have talked what will be placed in the testament,
what Atty. Sarmiento said was that he will go back on the 15th of June. When we
returned on June 15, Atty. Sarmiento was not there so we were not able to sign it, the
will. That is why, for the third time we went there on August 9 and that was the time we
affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:

Q When you did not find Atty. Sarmiento in his house on June 15, 1983, what transpired?

A The wife of Atty. Sarmiento told us that we will be back on August 9, 1983.

Q And on August 9, 1983 did you go back to the house of Atty. Sarmiento?

A Yes, Sir.

Q For what purpose?

A Our purpose is just to sign the will.

Q Were you able to sign the will you mentioned?

A Yes sir. (tsn, October 21, 1987, pp. 4-5)"22

Notably, petitioner failed to substantiate her claim of a "grand conspiracy" in the

commission of a fraud. There was no showing that the witnesses of the proponent stood
to receive any benefit from the allowance of the will. The testimonies of the three
subscribing witnesses and the notary are credible evidence of its due execution.23 Their
testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any showing of ill motives.24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:

"Article 798. In order to make a will it is essential that the testator be of sound mind at
the time of its execution.

"Article 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or shattered by disease, injury or other cause.
"It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act.

"Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.

"The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval."

According to Article 799, the three things that the testator must have the ability to know
to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the time of the
execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately
the kinds of property he owned, the extent of his shares in them and even their locations.
As regards the proper objects of his bounty, it was sufficient that he identified his wife as
sole beneficiary. As we have stated earlier, the omission of some relatives from the will
did not affect its formal validity. There being no showing of fraud in its execution, intent
in its disposition becomes irrelevant.

Worth reiterating in determining soundness of mind is Alsua-Betts v. CA,25 which held

thus:

"Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or
incapacity and while on one hand it has been held that mere weakness of mind, or
partial imbecility from disease of body, or from age, will not render a person incapable of
making a will; a weak or feebleminded person may make a valid will, provided he has
understanding and memory sufficient to enable him to know what he is about to do and
how or to whom he is disposing of his property. To constitute a sound and disposing
mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by
disease or otherwise. It has been held that testamentary incapacity does not necessarily
require that a person shall actually be insane or of unsound mind."26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution of the
Court of Appeals are AFFIRMED. Costs against petitioner.

SO ORDERED.
ARTEMIO V. PANGANIBAN

Associate Justice

Chairman, Third Division

W E C O N C U R:

ANGELINA SANDOVAL-GUTIERREZ, RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES, CANCIO C. GARCIA

Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairmans
Attestation, I certify that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

HILARIO G. DAVIDE, JR.

Chief Justice

Republic of the Philippines

SUPREME COURT
Manila

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. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the
Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will.15 In ruling that the
will could not be admitted to probate, the Court made the following consideration which
remains highly relevant to this day: "The purpose of requiring the number of sheets to
be stated in the attestation clause is obvious; the document might easily be so
prepared that the removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of the total number of
sheets such removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other hand, the total
number of sheets is stated in the attestation clause the falsification of the document will
involve the inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty."16

The case of In re Will of Andrada concerned a will the attestation clause of which failed
to state the number of sheets or pages used. This consideration alone was sufficient for
the Court to declare "unanim[ity] upon the point that the defect pointed out in the
attesting clause is fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will may be tampered
with; and as the Legislature has seen fit to prescribe this requirement, it must be
considered material."18

Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the
fact that the attestation clause did not state the number of pages of the will. Yet the
appellate court itself considered the import of these two cases, and made the following
distinction which petitioner is unable to rebut, and which we adopt with approval:

Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation
does not state the number of pages used upon which the will is written. Hence, the Will
is void and undeserving of probate.

We are not impervious of the Decisions of the Supreme Court in "Manuel Singson
versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon.
Avelino Rosal, et al., 118 SCRA 195," to the effect that a will may still be valid even if
the attestation does not contain the number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not applicable in the aforementioned
appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia
Florentino, et al., supra," although the attestation in the subject Will did not state the
number of pages used in the will, however, the same was found in the last part of the
body of the Will:

"x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or
sheets upon which the will is written, which requirement has been held to be mandatory
as an effective safeguard against the possibility of interpolation or omission of some of
the pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil.,
405; Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages
composing the will and that if this is missing or is omitted, it will have the effect of
invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by
a consideration or examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages upon which the will
is written, however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case out of the
rigid rule of construction and places it within the realm of similar cases where a broad
and more liberal view has been adopted to prevent the will of the testator from being
defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)

In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial
acknowledgement in the Will states the number of pages used in the:

"x x x

We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire will that it is
really and actually composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains the entirety of
the testamentary dispositions is signed by the testatrix at the end or at the bottom while
the instrumental witnesses signed at the left margin. The other page which is marked as
"Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament consists of two pages
including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial acknowledgment
wherein the number of pages of the will should be stated.21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in
1950, at a time when the statutory provision governing the formal requirement of wills
was Section

618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos,
considering that the requirement that the attestation state the number of pages of the
will is extant from Section 618.23 However, the enactment of the Civil Code in 1950 did
put in force a rule of interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy that governed these
two cases. Article 809 of the Civil Code states: "In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render the will invalid if it is
proved that the will was in fact executed and attested in substantial compliance with all
the requirements of article 805."

In the same vein, petitioner cites the report of the Civil Code Commission, which stated
that "the underlying and fundamental objective permeating the provisions on the [law]
on [wills] in this project consists in the [liberalization] of the manner of their execution
with the end in view of giving the testator more [freedom] in [expressing] his last wishes.
This objective is in accord with the [modern tendency] in respect to the formalities in the
execution of wills."24 However, petitioner conveniently omits the qualification offered by
the Code Commission in the very same paragraph he cites from their report, that such
liberalization be "but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence
upon the testator."25

Caneda v. Court of Appeals26 features an extensive discussion made by Justice

Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation clause in
wills.27 Uy Coque and Andrada are cited therein, along with several other cases, as
examples of the application of the rule of strict construction.28 However, the Code
Commission opted to recommend a more liberal construction through the "substantial
compliance rule" under Article 809. A cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be applied:

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be
safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in
the attestation clause, being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other,30 the other omission cited by Justice
J.B.L. Reyes which to his estimation cannot be lightly disregarded.

Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct
the allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself."31 Thus, a failure by the attestation
clause to state that the testator signed every page can be liberally construed, since that
fact can be checked by a visual examination; while a failure by the attestation clause to
state that the witnesses signed in one anothers presence should be considered a fatal
flaw since the attestation is the only textual guarantee of compliance.32

The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any
increase or decrease in the pages.33 The failure to state the number of pages equates
with the absence of an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is comprised of, as
was the situation in Singson and Taboada. However, in this case, there could have
been no substantial compliance with the requirements under Article 805 since there is
no statement in the attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.

At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the
members of the Code Commission in incorporating Article 805, the fact remains that
they saw fit to prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these remained effective
safeguards against the forgery or intercalation of notarial wills.34 Compliance with these
requirements, however picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to convey property post
mortem in the manner established in the will.35 The transcendent legislative intent,
even as expressed in the cited comments of the Code Commission, is for the
fruition of the testators incontestable desires, and not for the indulgent
admission of wills to probate.

The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that should
necessarily lead to its rejection.

For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the left-hand
margin of the will, they do not appear at the bottom of the attestation clause which after
all consists of their averments before the notary public.

Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin."37 While
three (3) Justices38 considered the signature requirement had been substantially
complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.

There is no question that the signatures of the three witnesses to the will do not appear
at the bottom of the attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by
law to be made by the attesting witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses, since
the omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the left-
hand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance
with the legal mandate that the will be signed on the left-hand margin of all its pages. If
an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the witnesses.39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be "attested and subscribed by [the instrumental
witnesses]." The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the will.
On the other hand, the signatures to the attestation clause establish that the witnesses
are referring to the statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if the instrumental witnesses signed
the left-hand margin of the page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses signatures on each and
every page, the fact must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number
of pages used upon which the will is written; the fact that the testator had signed the will
and every page thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof in the will that
the witnesses have stated these elemental facts would be their signatures on the
attestation clause.

Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition should
also hinge. The requirement under Article 806 that "every will must be acknowledged
before a notary public by the testator and the witnesses" has also not been complied
with. The importance of this requirement is highlighted by the fact that it had been
segregated from the other requirements under Article 805 and entrusted into a separate
provision, Article 806. The non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article 805, and should be treated as
of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan

ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila."40 By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or deed.41 It
involves an extra step undertaken whereby the signor actually declares to the notary
that the executor of a document has attested to the notary that the same is his/her own
free act and deed.

It might be possible to construe the averment as a jurat, even though it does not hew to
the usual language thereof. A jurat is that part of an affidavit where the notary certifies
that before him/her, the document was subscribed and sworn to by the
executor.42 Ordinarily, the language of the jurat should avow that the document was
subscribed and sworn before the notary public, while in this case, the notary public
averred that he himself "signed and notarized" the document. Possibly though, the word
"ninotario" or "notarized" encompasses the signing of and swearing in of the executors
of the document, which in this case would involve the decedent and the instrumental
witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act.43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the law that they
had executed and subscribed to the will as their own free act or deed. Such declaration
is under oath and under pain of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills, or those executed without the
free consent of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those persons
he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under
Article 806. A notarial will that is not acknowledged before a notary public by the
testator and the witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the
will in question. We need not discuss them at length, as they are no longer material to
the

disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and
that all the pages shall be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-called "logical end"44 of
the will on its first page. Also, the will itself is not numbered correlatively in letters on
each page, but instead numbered with Arabic numerals. There is a line of thought that
has disabused the notion that these two requirements be construed as
mandatory.45Taken 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.

DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO CARPIO

CONCHITA MORALES
Associate Justice Asscociate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

A.C. No. 5281 February 12, 2008

MANUEL L. LEE, petitioner,

vs.
ATTY. REGINO B. TAMBAGO, respondent.

RESOLUTION

CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged

respondent Atty. Regino B. Tambago 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 wife 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,
1965.1 Complainant, however, pointed out that the residence certificate2 of the testator
noted in the acknowledgment of the will was dated January 5, 1962.3 Furthermore, the
signature of the testator was not the same as his signature as donor in a deed of
donation4 (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]."5

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:
 Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT
executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in this
Office[s] files.6

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 the last will and testament was validly
executed and actually notarized by respondent per affidavit7 of Gloria Nebato, common-
law wife of Vicente Lee, Sr. and corroborated by the joint affidavit8 of the children of
Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx."9

Respondent further stated that the complaint was filed simply to harass him because
the criminal case filed by complainant against him in the Office of the Ombudsman "did
not prosper."

Respondent did not dispute complainants contention that no copy of the will was on file
in the archives division of the NCCA. He claimed that no copy of the contested will could
be found there because none was filed.

Lastly, respondent pointed out that complainant had no valid cause of action against
him as he (complainant) did not first file an action for the declaration of nullity of the will
and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar
of the Philippines (IBP) for investigation, report and recommendation.10

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, particularly Canon 111 and Rule
1.0112 of the Code of Professional Responsibility (CPR).13 Thus, the investigating
commissioner of the IBP Commission on Bar Discipline recommended the suspension
of respondent for a period of three months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006,
resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with

modification, the Report and Recommendation of the Investigating
Commissioner of the above-entitled case, herein made part of this Resolution as
Annex "A"; and, finding the recommendation fully supported by the evidence on
record and the applicable laws and rules, and considering Respondents failure
to comply with the laws in the discharge of his function as a notary public, Atty.
Regino B. Tambago is hereby suspended from the practice of law for one year
and Respondents notarial commission is Revoked and
14
Disqualified from reappointment as Notary Public for two (2) years.
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.15 A
will may either be 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 wills is to close the door on bad
faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth
and authenticity.16

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.17

The will in question was attested by only two witnesses, Noynay and Grajo. On this
circumstance alone, the will must be considered void.18 This is in consonance with the
rule that acts executed against the provisions of mandatory or prohibitory laws shall be
void, except when the law itself authorizes their validity.

The Civil Code likewise requires that a will must be acknowledged before a notary
public by the testator and the witnesses.19 The importance of this requirement is
highlighted by the fact that it was segregated from the other requirements under Article
805 and embodied in a distinct and separate provision.20

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 the signatory actually declares to the notary public that the same is
his or her own free act and deed.21 The acknowledgment in a notarial will has a 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 requirement was neither strictly nor 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 residence certificate in the same acknowledgment was a clear breach of
the law. These omissions by respondent invalidated 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:22

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.23 A notary public,
especially a lawyer,24 is bound to strictly observe these elementary requirements.

The Notarial Law then in force required the exhibition of the residence certificate upon
notarization of a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residence tax.

Every contract, deed, or other document acknowledged before a notary public
shall have certified thereon that the parties thereto have presented their proper
[cedula] residence certificate or are exempt from the [cedula] residence tax, and
there shall be entered by the notary public as a part of such certificate the
number, place of issue, and date of each [cedula] residence certificate as
aforesaid.25

The importance of such act was further reiterated by Section 6 of the Residence Tax
Act26 which stated:

When a person liable to the taxes prescribed in this Act acknowledges any
document before a notary public xxx it shall be the duty of such person xxx with
whom such transaction is had or business done, to require the exhibition of the
residence certificate showing payment of the residence taxes by such person xxx.

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 both the 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.

On the issue of whether respondent was under the legal obligation to furnish a copy of
the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator
and the witness. The notary public shall not be required to retain a copy of
the will, or file another with the office of the Clerk of Court. (emphasis
supplied)

Respondents failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary
entries pertaining to the will in his notarial register. The old Notarial Law required the
entry of the following matters in the notarial register, in chronological order:

1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of the

instrument.27

In an effort to prove that he had complied with the abovementioned rule, respondent
contended that he had crossed out a prior entry and entered instead the will of the
decedent. As proof, he presented a photocopy of his notarial register. To reinforce his
claim, he presented a photocopy of a certification28 stating that the archives division had
no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is shown that

the original is unavailable. The proponent must first prove the existence and cause of
the unavailability of the original,29 otherwise, the evidence presented will not be
admitted. Thus, the photocopy of respondents notarial register was not admissible as
evidence of the entry of the execution of the will because it failed to comply with the
requirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated September
21, 199930 must fail. Not only did he present a mere photocopy of the certification dated
March 15, 2000;31 its contents did not squarely prove the fact of entry of the contested
will in his notarial register.

Notaries public must observe with utmost care32 and utmost fidelity the basic
requirements in the performance of their duties, otherwise, the confidence of the public
in the integrity of notarized deeds will be undermined.33

Defects in the observance of the solemnities prescribed by law render the entire will
invalid. This carelessness cannot be taken lightly in view of the importance and delicate
nature of a will, considering that the testator and the witnesses, as in this case, are no
longer alive to identify the instrument and to confirm its contents.34 Accordingly,
respondent must be held accountable for his acts. The validity of the will was seriously
compromised as a consequence of his breach of duty.35

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of duty on

the part of a notary public shall, in the discretion of the proper judge of first
instance, be sufficient ground for the revocation of his commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his notarial
register touching his notarial acts in the manner required by law.

xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula
certificates.36

These gross violations of the law also made respondent liable for violation of his oath as
a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of
Court37 and Canon 138 and Rule 1.0139 of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the
Philippines, uphold the Constitution and obey the laws of the land.40 For a lawyer is the
servant of the law and belongs to a profession to which society has entrusted the
administration of law and the dispensation of justice.41

While the duty to uphold the Constitution and obey the law is an obligation imposed on
every citizen, a lawyer assumes responsibilities well beyond the basic requirements of
good citizenship. As a servant of the law, a lawyer should moreover make himself an
example for others to emulate.42 Being a lawyer, he is supposed to be a model in the
community in so far as respect for the law is concerned.43

The practice of law is a privilege burdened with conditions.44 A breach of these

conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is
imposed on a lawyer upon a finding or acknowledgment that he has engaged in
professional misconduct.45 These sanctions meted out to errant lawyers include
disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.46 We have held in a

number of cases that the power to disbar must be exercised with great caution47 and
should not be decreed if any punishment less severe such as reprimand, suspension,
or fine will accomplish the end desired.48 The rule then is that disbarment is meted out
only in clear cases of misconduct that seriously affect the standing and character of the
lawyer as an officer of the court.49
Respondent, as notary public, evidently failed in the performance of the elementary
duties of his office. Contrary to his claims that he "exercised his duties as Notary Public
with due care and with due regard to the provision of existing law and had complied with
the elementary formalities in the performance of his duties xxx," we find that he acted
very irresponsibly in notarizing the will in question. Such recklessness warrants the less
severe punishment of suspension from the practice of law. It is, as well, a sufficient
basis for the revocation of his commission50 and his perpetual disqualification to be
commissioned as a notary public.51

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of

professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of
Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art.
806 of the Civil Code and (5) the provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year
and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court, he
is PERPETUALLY DISQUALIFIED from reappointment as a notary public.

Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar
of the Philippines and the Office of the Bar Confidant, as well as made part of the
personal records of respondent.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased
Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.

FIRST DIVISION

[ G.R. NO. 174144, April 17, 2007 ]

BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A. BIHIS,

RESPONDENT.

DECISION

CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau[1], siblings who fought
bitterly over the inheritance of their father Isaac's estate. Jurisprudence is also replete
with cases involving acrimonious conflicts between brothers and sisters over
successional rights. This case is no exception.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner Bella A.

Guerrero and respondent Resurreccion A. Bihis, died at the Metropolitan Hospital in
Tondo, Manila.

On May 24, 1994, petitioner filed a petition for the probate of the last will and testament
of the decedent in Branch 95[2] of the Regional Trial Court of Quezon City where the
case was docketed as Sp. Proc. No. Q-94-20661.

The petition alleged the following: petitioner was named as executrix in the decedent's
will and she was legally qualified to act as such; the decedent was a citizen of the
Philippines at the time of her death; at the time of the execution of the will, the testatrix
was 79 years old, of sound and disposing mind, not acting under duress, fraud or undue
influence and was capacitated to dispose of her estate by will.

Respondent opposed her elder sister's petition on the following grounds: the will was
not executed and attested as required by law; its attestation clause and
acknowledgment did not comply with the requirements of the law; the signature of the
testatrix was procured by fraud and petitioner and her children procured the will through
undue and improper pressure and influence.

In an order dated November 9, 1994, the trial court appointed petitioner as special
administratrix of the decedent's estate. Respondent opposed petitioner's appointment
but subsequently withdrew her opposition. Petitioner took her oath as temporary special
administratrix and letters of special administration were issued to her.

On January 17, 2000, after petitioner presented her evidence, respondent filed a
demurrer thereto alleging that petitioner's evidence failed to establish that the
decedent's will complied with Articles 804 and 805 of the Civil Code.

In a resolution dated July 6, 2001, the trial court denied the probate of the will ruling that
Article 806 of the Civil Code was not complied with because the will was
"acknowledged" by the testatrix and the witnesses at the testatrix's, residence at No. 40
Kanlaon Street, Quezon City before Atty. Macario O. Directo who was a commissioned
notary public for and in Caloocan City. The dispositive portion of the resolution read:

WHEREFORE, in view of the foregoing, the Court finds, and so declares that it cannot
admit the last will and testament of the late Felisa Tamio de Buenaventura to probate
for the reasons hereinabove discussed and also in accordance with Article 839 [of the
Civil Code] which provides that if the formalities required by law have not been complied
with, the will shall be disallowed. In view thereof, the Court shall henceforth proceed
with intestate succession in regard to the estate of the deceased Felisa Tamio de
Buenaventura in accordance with Article 960 of the [Civil Code], to wit: "Art. 960. Legal
or intestate succession takes place: (1) If a person dies without a will, or with a void will,
or one which has subsequently lost its validity, xxx."

SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the appellate court dismissed
the appeal and affirmed the resolution of the trial court.[4]

Thus, this petition.[5]

Petitioner admits that the will was acknowledged by the testatrix and the witnesses at
the testatrix's residence in Quezon City before Atty. Directo and that, at that time, Atty.
Directo was a commissioned notary public for and in Caloocan City. She, however,
asserts that the fact that the notary public was acting outside his territorial jurisdiction
did not affect the validity of the notarial will.

Did the will "acknowledged" by the testatrix and the instrumental witnesses before a
notary public acting outside the place of his commission satisfy the requirement under
Article 806 of the Civil Code? It did not.
Article 806 of the Civil Code provides:

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.
One of the formalities required by law in connection with the execution of a notarial will
is that it must be acknowledged before a notary public by the testator and the
witnesses.[6] This formal requirement is one of the indispensable requisites for the
validity of a will.[7] In other words, a notarial will that is not acknowledged before a notary
public by the testator and the instrumental witnesses is void and cannot be accepted for
probate.

An acknowledgment is the act of one who has executed a deed in going before some
competent officer and declaring it to be his act or deed.[8] In the case of a notarial will,
that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the instrumental
witnesses to declare before an officer of the law, the notary public, that they executed
and subscribed to the will as their own free act or deed.[9] Such declaration is under oath
and under pain of perjury, thus paving the way for the criminal prosecution of persons
who participate in the execution of spurious wills, or those executed without the free
consent of the testator.[10] It also provides a further degree of assurance that the testator
is of a certain mindset in making the testamentary dispositions to the persons instituted
as heirs or designated as devisees or legatees in the will.[11]

Acknowledgment can only be made before a competent officer, that is, a lawyer duly
commissioned as a notary public.

In this connection, the relevant provisions of the Notarial Law provide:

SECTION 237. Form of commission for notary public. -The appointment of a notary
public shall be in writing, signed by the judge, and substantially in the following form:

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________ in said province,

was on the ___ day of __________, anno Domini nineteen hundred and _______,
appointed by me a notary public, within and for the said province, for the term ending on
the first day of January, anno Domini nineteen hundred and _____.

_________________
Judge of the Court of
irst Instance[12] of said
Province

xxx xxx xxx

SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public in a province

shall be co-extensive with the province. The jurisdiction of a notary public in the City of
Manila shall be co-extensive with said city. No notary shall possess authority to do any
notarial act beyond the limits of his jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in his favor to perform notarial
acts.[13] It is issued "within and for" a particular territorial jurisdiction and the notary
public's authority is co-extensive with it. In other words, a notary public is authorized to
perform notarial acts, including the taking of acknowledgments, within that territorial
jurisdiction only. Outside the place of his commission, he is bereft of power to perform
any notarial act; he is not a notary public. Any notarial act outside the limits of his
jurisdiction has no force and effect. As this Court categorically pronounced in Tecson v.
Tecson:[14]

An acknowledgment taken outside the territorial limits of the officer's jurisdiction is void
as if the person taking it ware wholly without official character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in Quezon City, he
lacked the authority to take the acknowledgment of the testatrix and the instrumental
witnesses. In the same vein, the testatrix and her witnesses could not have validly
acknowledged the will before him. Thus, Felisa Tamio de Buenaventura's last will and
testament was, in effect, not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be
void, except when the law itself authorizes their validity.

The violation of a mandatory or a prohibitory statute renders the act illegal and void
unless the law itself declares its continuing validity. Here, mandatory and prohibitory
statutes were transgressed in the execution of the alleged "acknowledgment." The
compulsory language of Article 806 of the Civil Code was not complied with and the
interdiction of Article 240 of the Notarial Law was breached. Ineluctably, the acts of the
testatrix, her witnesses and Atty. Directo were all completely void.

The Court cannot turn a blind eye to Atty. Directo's participation in the preparation,
execution and unlawful "acknowledgment" of Felisa Tamio de Buenaventura's will. Had
he exercised his notarial commission properly, the intent of the law to effectuate the
decedent's final statements[15] as expressed in her will would not have come to
naught.[16] Hence, Atty. Directo should show cause why he should not be
administratively sanctioned as a member of the bar and as an officer of the court.

WHEREFORE, the petition is hereby DENIED. Costs against petitioner. Let a copy of
this decision be furnished the Commission on Bar Discipline of the Integrated Bar of the
Philippines for investigation, report and recommendation on the possible misconduct of
Atty. Macario O. Directo.
SO ORDERED. Puno, C.J., (Chairperson), Sandoval-Gutierrez, Azcuna and Garcia,
JJ., concur.

ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate

Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI
MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases
Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed
the Order dated 27 June 1983 2 of the Regional Trial Court of Sta. Cruz, Laguna,
admitting to probate the last will and testament 3 with codicil 4 of the late Brigido
Alvarado.

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled
"Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged
document, read the same aloud in the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the reading with their own
respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9

December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in
the notarial will to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read the
final draft of the codicil. Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental witnesses (same as those of the
notarial will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's
death on 3 January 1979 by private respondent as executor with the Court of First
Instance, now Regional Trial Court, of Siniloan, Laguna. 5Petitioner, in turn, filed an
Opposition on the following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its execution due to senility and old
age; that the will was executed under duress, or influence of fear and threats; that it was
procured by undue and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly, that the signature
of the testator was procured by fraud or trick.

When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased was
blind within the meaning of the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading required by Art. 808 of the Civil
Code was admittedly not complied with, probate of the deceased's last will and codicil
should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading requirement of Art. 808 was
substantially complied with when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary public following the reading with
their respective copies of the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was substantial compliance since
its purpose of making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of
Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the
double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado
was not totally blind at the time the will and codicil were executed. However, his vision
on both eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma
which he had been suffering from for several years and even prior to his first
consultation with an eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a
"blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by
one of the subscribing witnesses, and again, by the notary public before
whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), 6 the contents of which were
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise was admitted by
private respondent. 7 Dr. Roasa explained that although the testator could visualize
fingers at three (3) feet, he could no longer read either printed or handwritten matters as
of 14 December 1977, the day of his first consultation. 8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that
the testator could still read on the day the will and the codicil were executed but chose
not to do so because of "poor eyesight." 9 Since the testator was still capable of reading
at that time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision making it necessary for private respondent
to do the actual reading for him.
13
The following pronouncement in Garcia vs. Vasquez provides an insight into the
scope of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the

testator if he is blind or incapable of reading the will himself (as when he is
illiterate), is to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to
those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer who drafted the will and
codicil did so confortably with his instructions. Hence, to consider his will as validly
executed and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to make known to the
incapacitated testator the contents of the document before signing and to give him an
opportunity to object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and
an instrumental witness, it was the lawyer (private respondent) who drafted the eight-
paged will and the five-paged codicil who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains
that the only valid compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the contents of the will and
codicil to Brigido, probate of the latter's will and codicil should have been disallowed.

We sustain private respondent's stand and necessarily, the petition must be denied.

This Court has held in a number of occasions that substantial compliance is acceptable
where the purpose of the law has been satisfied, the reason being that the solemnities
surrounding the execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible as to destroy the
testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the
presence of the testator, his three instrumental witnesses, and the notary public. Prior
and subsequent thereto, the testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and acknowledgement
take place. There is no evidence, and petitioner does not so allege, that the contents of
the will and codicil were not sufficiently made known and communicated to the testator.
On the contrary, with respect to the "Huling Habilin," the day of the execution was not
the first time that Brigido had affirmed the truth and authenticity of the contents of the
draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes even
prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for
the purpose of securing his conformity to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la
Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testator's physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the affirmative. 16 With four
persons following the reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we consider the
fact that the three instrumental witnesses were persons known to the testator, one being
his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him
since childhood.

The spirit behind the law was served though the letter was not. Although there should
be strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they do
not affect its purpose and which, when taken into account, may only defeat the testator's
will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate Order
and its affirmance by the Court of Appeals, we quote the following pronouncement
in Abangan v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close

the door against bad faith and fraud, to avoid the substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore the laws
on the subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's will, must be disregarded(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his
"Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside
fro the mere reason that a legal requirement intended for his protection was not followed
strictly when such compliance had been rendered unnecessary by the fact that the
purpose of the law, i.e., to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of
Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case
has remained pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.

Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.