Chapter 2 TESTAMENTARY SUCCESSION SECTION 1.—WILLS SUBSECTION 1.—WILLS IN GENERAL ARTICLE 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to con- trol to a certain degree the disposition of his estate, to take effect after his death. (667a) 1. The operative words in the definition: 1, Act—The definition of a will as an act is too broad and should have been more clearly delimited with a more specific term such as instrument or docu- ment, in view of the provision of Article 804 that “every will must be in writing.” Nuncupative, or oral, wills are not recognized in our Code. The codal definition of will as act retains the definition in Article 667 of the Spanish Code, which provides: “Art, 667. El acto por el cual una persona dis- pone para después de su muerte de todos sus bienes 0 de parte de ellos, se llama testamento.” But the Spanish codal definition was accurate, because, under the Spanish Code, unlike ours, a will was not always written, e.g. in certain cases, a military will could be oral: “Art. 720, Ist par. Durante una batalla, asalto, combate, y generalmente en todo peligro préximo de ac- cin de guerra, podré otorgarse testamento militar de palabra ante dos testigos.” 3738, ML. Re: #1—See comments under Articles 784-785 and s SPRUDENCE Jortinas ANP Juri 3 permitted —will- making is purely statutory, | Formalities prescribed by taw—the requiremen form prescribed respectively for attested holographic wills. Control to a certain degree—The testator’s power testamentary disposition 1s limited by the fi on legitimes. After his death—Testamentary succession, like al) Aner ixinds of succession in our Code, is mors causa. An alternative definition: A will is “a personal, solemn, revocable, and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death" (Vitug vs. Court of Appeals, 183 SCRA 755 [1990]) Characteristics of Wills: @naneerne 9. PFC - gMi- BU -0s) purely personal (Articles 784-785; 787) free and intelligent (Article 839) solemn and formal (Articles 804-814; 820-821) revocable or ambulatory (Article 828) mortis causa (Article 783) individual (Article 818) executed with animus testandi (Article 783) executed with testamentary capacity (Articles 796 803) unilateral (Article 783) 10. dispositive of property (Article 783) ” iL statutory (Article 783) 787. Re: #2—The testator’ itiats r 's consent should not be vitlal the causes mentioned in Article 839, pars. 2-6 (insani” lence, intimidation, undue influence, fraud, mistake)-Art 783 ‘TesTaMENTARY SUCCESSION 39 Re: #3—The requirements of form depend on whether the will is attested or holographic, Articles 805-808; 820-821 govern attested wills. Articles 810-814 govern holographic wills, Article 804 applies to both. Re: #4—See comments under Article 828. Re: #5—A necessary consequence of Articles 774 and 777. Re: #6—Joint wills are prohibited in this jurisdiction. See comments under Article 818. Re: #7— This characteristic is implied in Article 783. In one interesting case, the Court of Appeals had occasion to pass upon whether or not Rizal’s valedictory poem possessed this characteristic and consequently, whether or not it was a will. The crucial words are found in the poem’s thirteenth stanza: “Ahi te dejo todo, mis padres, mis amores.” (To you I leave everything, my parents, my loves.) Declared the Court: “An instrument which merely expresses a last wish as a thought or advice but does not contain a disposition of property and was not executed with animus testandi, cannot legally be considered a will Such instrument, like Rizal’s ‘Ultimo Adiés,’ may be considered a will in the grammatical sense, but not in the legal or juridical sense.” (Montinola v. Herbosa, 3 CA Rep. 377) (The Court had, a paragraph earlier, observed “Rizal's ‘Ultimo Adios’ is a literary piece of work and was so intended.” A perceptive and accurate comment. The Court should have left well enough alone. The sentence that follows is not as enlightening; “If it were intended as a will the poem would have been entitled ‘Ultima Voluntad’ and not ‘Ultimo Adiés.’” Pre- scinding from the unintended comic effect of this statement, to this author's knowledge, Rizal’s valedictory poem is untitled.) Re: #8 — See comments under Articles 796-803.40 JOTtiINGS AND JURISPRUDENCE, At Tay Re: #9 — This characteristic 783, Re: #10 — Article 783 seems to consider the disposition of the testator’s estate mortis causa as the purpose of will. making s implied in Articl Re: #11—Vide no. 2 of comments under Article 783. Quaerenda: 1, Would a document merely appointing an executor, not containing any dispositive provision, have to comply with the formal requirements of a will in or- der to be effective? Would such a document have to be probated? 2. Would a document containing only a disinheriting clause have to be in the form of a will and be pro- bated? (Vide Article 916) In Seangio v. Reyes (508 SCRA 177 {2006}) the document, a holographic one, (entitled Kasulatan ng Pag-aalis ng Mana), contained only a clause of disinheritance (of one of the testa- tor’s sons). In the probate proceedings, one of the grounds of the motion to dismiss was that the document “does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code.” The Court held that the document, “although it may ini- tially come across as a mere disinheritance instrument, con forms to the formalities of a holographic will ... An intent to dispose mortis causa can be clearly deduced from the terms of the instrument, and while it does not make an affirmative dis- position of the |testator’s} property, the disinheritance of {the Son] nonetheless, is an act of disposition in itself. In other words, the disinheritance results in the disposition of the proP- crty of the testator ... in favor of those who would succeed i the absence of {the disinherited heir]. The clear implication of Seangio is that a document which contains only a provision of disinheritance is, in legal conte Plation, a will and must be admitted to probate to be effective.Catia R led ‘TestaMENTarY SUCCESSION 41 ARTICLE 784. The making of a will is a strictly per- sonal act; it cannot be left in whole or in part to the dis- cretion of a third person, or accomplished through the in- strumentality of an agent or attorney. (670a) 1. This provision gives the will its purely personal charac- ter, Il, Non-delegability of will-making— 1. It is the exercise of the disposing power that can- not be delegated. Obviously, mechanical aspects, such as typing, do not fall within the prohibition. 2, What constitute the exercise of the disposing power? The following article provides the answer. ARTICLE 785. The duration or efficacy of the desig- nation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) ‘The following constitute the essence of will-making or the exercise of the disposing power, and thus are non-delegable: 1. the designation of heirs, devisees, or legates; 2, the duration or efficacy of such designation (including such things as conditions, terms, substitutions); 3. the determination of the portions they are to receive. nstitutions and those falling under Article 786 do Cla: jortions going to the several recipients. not have to specify the p ARTICLE 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institu- tions or establishments to which such property or sums of money are to be given or applied. (671a)42 JOrTINGS AND JURISPRUDENCE Any 1. This constitutes an exception to the rule of non delegability of will-making. Without this provision, the thingy allowed to be delegated here would be non-delegable. I. Under this provision A. Two things must be determined by the testator: 1. the property or amount of money to be given; and 2. the class or the cause to be benefited, B. Two things may be delegated by the testator: 1 the designation of persons, institutions, or es- tablishments within the class or cause; 2. the manne of distribution. Quaerendum: Suppose the testator specified the recipients (by specific designation) but left to the third person the deter- mination of the sharing, e.g. “I leave P500,000 for the PNRC, the SPCA, and the Tala Leprosarium, to be distributed among these institutions in such proportions as my executor may de- termine.” Is this valid? One view: The letter of Article 785 seems to prohibit this, because the recipients are referred to by name and therefore the portions they are to take must be determined by the test tor. Article 786 applies only where the testator merely specifies the class or the cause but not the specific recipients. Contra: This actually involves a lesser discretion for the third person than the instances allowed by Article 786 a" should be allowed. ARTICLE 787. The testator may not make @ — mentary disposition in such manner that another pers has to determine whether or not it is to be operative: (#) 1. Article 2065, par. 1 of the German Civil Code, !™ which this article is derived, provides:juts 708-789 : Testamentary SUCCESSION 43 +2065. [Keine Bestimmung durch Dritte] (1) Der Erblasser kann eine letatwillige Verfiigung nicht in der Weise treffen, da8 ein anderer zu bestimmen hat, ob sie gelten oder nicht gelten soll. “(2) Der Erblasser kann die Bestimmung der Person, die eine Zuwendung erhalten soll, sowie die Bestimmung des Gegenstandes der Zuwendung nicht einem anderen tiberlassen.”! I. 1) This rule is consistent with, and reinforces, the purely personal character of a will, laid down in Article 784. 2) This article should be interpreted rationally. It is not to be so interpreted as to make it clash with the principle, expressed later in this Code (Articles 1041-1057) that the heir is free to accept or reject the testamentary disposition. What this article prohibits is the delegation to a third per- son of the power to decide whether a disposition should take effect or not; e.g. “I leave 1/8 of my estate to A, and I authorize B to decide whether this disposition should be given effect or not.” This is prohibited. A, however, is free (indeed, cannot be deprived of the freedom) to accept or renounce the testamen- tary benefit The next seven articles lay down the rules of construction and interpretation ARTICLE 788. If a testamentary disposition admits of different interpretations, in case of doubt, that inter- pretation by which the disposition is to be operative shall be preferred. (n) ARTICLE 789. When there is an imperfect descrip- tion, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if 1 +2065. [Wo determination by third person] [1] The testator may not make a testamentary disposition in such a manner that another person has to determine whether it will be effective or will not be effective 2] ‘The testator may not leave to another person the designation of the person who ie to recewve a gift nor the designation of the content of the gift.” {German Civil Code}44 Jorncs axo Juniseat Ans 796) the error appears from the context of the will or from ex. trinsic evidence, excluding the oral declarations of the tee. tator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of ite provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations, (n) ARTICLE 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear inten. tion to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their tech- nical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unac- quainted with such technical sense. (675a) ARTICLE 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expres- sions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) ARTICLE 792. The invalidity of one of several dispo- sitions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) ARTICLE 793. Property acquired after the making of a will shall only pass thereby, as if the testator had pos- sessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) ARTICLE 794. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) \798 es 5 A Testamentary SUCCESSION I Article 788: 1 This is practically a literal translation of Article 2084 of the BGB: "2084. [Verschiedene Auslegungsmégglichke: ten] La®t der Inhalt einer letzwilligen Verfagung ver schiedene Auslegungen zu, so ist im Zweifel diejenige Auslegung vorzuziehen, bei welcher die Verfiigung Er- folg habben kann.”2 Il. The underlying principle here is that testacy is pre- ferred to intestacy, because the former is the express will of the decedent whereas the latter is only his implied will. II. In statutory construction, the canon is worded thus: “Ut res magis valeat quam pereat."—That the thing may rather be effective than be without effect. IV. A similar principle in contractual interpretation is found in Article 1373.3 Article 789: 1. Two kinds of ambiguity referred to in this article— A. Latent—Not obvious on the face of the will “When there is an imperfect description, or when no person or property exactly answers the de- scription. . .” “{ institute to 1/4 of my es- 1. latent as to person— tate my first cousin Jose” (and the testator has more than one first cousin named Jose). ys of interpretation] If the content of a testamen- ‘etations, in case of doubt, the inter: may have operative 22084, [Different wat tary disposition admits of various interpr pretation shall be preferred under which the disposition effect." >*Art, 1373. If some stipulat meanings, it shall be understood as bearing th uate to render it effectual.” tion of any contract should admit of several fat import which is most ade-46 JortiNGs AND JURISPRUDE Ant To 2. latent as to property—‘I devise to my cousin Pacifico my fishpond in Roxas City” (and the tes. tator has more than one fishpond in Roxas City In neither case does there appear to be ambiguity on the face of the will; the ambiguity is latent (latere—to be hidden; to be concealed) B. Patent — Obvious on the face of the will: “When an uncertainty arises upon the face of the will, as to the application of any of its provisions. . .” 1. patent as to person—“l institute to 1/4 of my es- tate some of my first cousins.” patent as to property—‘I bequeath to my cousin Pacifico some of my cars.” In both cases the ambiguity is evident from a reading of the testamentary provisions themselves; the ambiguity is pat- ent (patere—to be exposed). Il, How to deal with ambiguities: A. The provisions of this article do not make a dis- tinction in the solution of the problem of ambigui- ties—whether latent or patent. Hence, the distinc- tion between the two kinds of ambiguity is, in the light of the codal provisions, an all but theoretical one. B. 1, The ambiguity should, as far as possible, be cleared up or resolved, in order to give effect to the testamentary disposition. (Again the principle: Testacy is preferred to intestacy). 2. Method of resolving ambiguity, whether latent or patent: any evidence admissible and relevant, excluding in either case oral decla- rations of testator as to his intention. The reason for the Statutory exclusion is obvious: can a dead man refute a tale?an 708 TestAMENTARY SUCCESSION a Article 790: Similar rules are laid down in Rule 130, Sections 10 and 14 of the Rules of Court: “Sec. 10, Interpretation of a writing according to its legal meaning.—The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.” “Sec. 14. Peculiar signification of terms—The terms of a writing are presumed to have been used in their primary and general application, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.” In contractual interpretation, a similar principle is ex- pressed in Article 1370, par. 1: “Art. 1370. If the terms of a contract are clear and leave no doubt upon the intention of the con- tracting parties, the literal meaning of its stipulations shall control.” Article 791: A similar rule is found in Rule 130, Section 11 of the Rules of Court: SECTION 11. Instrument construed so as to give effect to all provisions.—In the construction of an in- strument where there are several provisions or par- ticulars, such a construction is, if possible, to be adopted as will give effect to all In contractual interpretation, Articles 1373 and 1374 lay down similar principles: “art. 1373, If some stipulation of any contract should admit of several meanings, it shall be under- stood as bearing that import which is most adequate to render it effectual.48 JOTTINGS AND JURISPRUDENCE An 74 “Art. 1374. The various stipulations of a con- tract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly.” Article 792 1. This article makes applicable to wills the severability ability principle in statutory construction frequently ly provided in a separability clau Il. Article 2085 of the BGB is the sow of this article: “2085. [Teilweise Unwirksamkeit] Die Unwirk- samkeit einer von mehreren in einem Testament en- thaltenen Verfiigungen hat die Unwirksamkeit der Gbrigen Verfiigungen nur zur Folge, wenn anzuneh- men ist, da® der Erblasser diese ohne die unwirk- ume Verftigung nicht getroffen haben wide.” (2085. [Partial invalidity] The invalidity of one of several dispositions contained in a will results in the invalidity of the other dispositions only if it is to be presumed that the testator would not have made these if the invalid disposition had not been made.” [German Civil Code)) Article 793: 1. This article [an implant from the Code of Civil Proce- dure and ultimately from American law.| creates problems which would not have existed had it not been so nonchalantly incorporate in the Code. Il. The problems spring from the fact that this article makes the will speak as of the time it is made, rather than at the time of the decedent’s death (which is more logical because that is when the will takes effect {Art. 777]) Ill. Per the terms of this article, therefore: Example No. 1: X executes a will in 1980 with a provision “I leave to A 1/4 of my estate.” When he made the will, his | tate was worth P100,000. At the time of his death in 1990, X$__ | » 4)49 at 708 Tesh wennary SUCCESSION estate was worth PS00,000, Per Article 793, A is entitled to only P25,000. X executes a will in 1985 containing & in APL" The testator dies in any BPI the Example No. 2: give to Mall my shares at the time of his death, ten times @& made the will, Under Article 793, legacy 1940, owning Sas he did when he shar Shares acquited alter the will was executed are not included in the legaey Iv. Article 793. therefore departs from the codal philo an exception to 6 and constitutes and 7 sd to death and rendered le- ssion as linke sophy of ne concept of succe: gully effective by death. the rule should be fter the making of a ily appears from ion for law reform V. As a sugges turned around thus: “Property aequired a will passes thereby unless the contrary ¢l the words or the context of the will.” VL In the meantime, it is suggested that this article be Liberally construed, Can the word “expressly” in this article be early” even if it might be stretching a interpreted to mean point? Article 794: I. This article I. General rule: In a Te exactly the interest he has in the should be read together with Article 929. cy or devise the testator gives thing (Article 794). ss interest (Article 794) or a Exceptions; He can give a le greater interest (Article 929) than he has. In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in Article 931 can be applied; ie. the legatee or devise shall be entitled only to the just value of the interest that should have been ac- quired, 4 ARTICLE 795. The validity of a will as to its form lepends upon the observance of the law in force at the time it is made. (n)f Art me 50 I. Aspects of Validity of Wills A. Extrinsio—re validity) sto the requirement of form (formal 1. Governing law as to time: a. For Filipinos—the law in force when the will was executed (Article 7! b. For foreigne same rule (NOTE: The assump: tion here, of course, is that the will is being probated here}. 2. Governing law as to place: a. For Filipinos— 1) law of citizenship 2) law of domicile 3) law of residence 4) law of place of execution, or 5) Philippine law (Vide comments under Articles 815-817). ame choices b. For foreigners B._Intrinsic—refers to the substance of the provisions (substantive validity) 1, Governing law as to time: a. For Filipinos—the law as of the time of death (Article 22639) ‘ART. 2263. Rights to the inheritance of a person who died, wth & without a will, before the effectivity of this Code, shall be governed by the C™ Code of 1889, by other previous laws, and by the Rules of Court. The het? tance of those who, with or without a will, die after the beginning of the #¢« tivity of this Code, shall be adjudicated and distributed in accordance with 1% new body of laws and by the Rules of Court; but the nentary prowson® shall be carried out insofar as they may be permitted by this Code Therefore, legitimes, betterments, legacies and bequests shall be respected; however, ee amount shall be reduced if in no other manner can every compulsory hel aiven his full share according to this Code. (Rute 12a)ants. 790 800 Testamentary Succession 51 b. For forcigners—depends on their personal law (Article 16, par, 2;9 Article 10394) Governing law as to place: a. Por Filipinos—Philippine law (Article 16, par. 2; Article 1039) b. For forcigners—their national law (Article 16, par. 2; Article 1039) SUBSECTION 2.—TESTAMENTARY CAPACITY AND INTENT ARTICLE 796. All persons who are not expressly pro- hibited by law may make a will. (662) ARTICLE 797. Persons of either sex under eighteen years of age cannot make a will. (n) ARTICLE 798. In order to make a will it is essential that the testator be of sound mind at the time of its execu tion. (n) ARTICLE 799. To be of sound mind, it is not neces- sary that the testator be in full possession of all his rea- soning faculties, or that his mind be wholly unbroken, un- impaired, or unshattered 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. (n) ARTICLE 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. AKT 16, par 24x x However, mntestate and testamentary stecessions, lund to the amount of successional h with respect to the order of succes Hpite and te the antinae sahdily of testamentary provisions, shall be regu eeneeaeeaennace ena of thie person whose succession 1s under considera aannnenncnnnne une nature of the property and regardless of the country herein wud property may be found, (104) Act Tod Capacity to mucceed 1s goserned by the law of the nation of decedent (n}, JOFINGS AND Jussietngs ce ‘The burden of proof that the mind at the time of making his : jon who opposes the probat 8 Ie og ta « PP Probate of the will bur neu one month or less, before making by e known to be insane, the person whe pis, Will way tty mi : of the will must prove that the tester tains the ec, testator ; w Fispositions °° of, tate Iucid interval. (n) fOr made it ei . ARTICLE 801. Supervening incapaci validate an effective will, nor is the wil oes not validated by the supervening of capacity. (q) °" ™* Articles 796-801 lay down the rule SON testameny capacity 1. Testamentary capacity (testamenti facto; testament: cién activa)—the legal capacity to make a will. Il. Who have testamentary capacity—all natural pews unless disqualified by law. Juridical persons are not gt! testamentary capacity. Disqualified persons: A. Those under 18 (Article 797) i of 1987 ¥ Under E.0, 292, the Administrative hain reckon tok elect on November 24, 1989, years A760 il cording to the Gregorian calendar.’ Sec. 31, ut “ hall by "Sec. 31. Legal Periods "Year, Tron dersiood to be twelve calendar mor cal thiny days, unless it refers t0 @ SPireg acti month in which case it shall be COMP, cot! ee ic mon te to the number of days the specie and *ni8 | “day,” to a day of twenty-four hours: sunset to sunrise | 798) B, Those of unsound mind (Article Y —_—_ fF ive 7 For decedents who died before fle“ ould have to be made under the old la gate ©eNTARY SUCCESSION a 801 Testa of mind (Insanity) 1. Unsoundnes absence of the qualities of soundness of mind indirection because fined. (Article 799) — defined by the Code only by i only soundness of mind is de 2. Soundness of mind (sanity) defined: Negatively i) Not necessary that testator be in full pos: session of reasoning faculties; testator’s mind be ii) Not necessary that red, unshattered wholly unbroken, unimpai by disease, injury, or other cause. Positively Ability to know three things: i) nature of estate to be disposed of; ii) _ proper objects of one’s bounty; and iii) character of testamentary act. The testator should have a fairly accurate knowledge of what he owns. The word “accurate” should of course be understood in a relative Sense. The more one owns, the less accurate is one’s knowledge of his estate expected to be. A modern-day Croesus whose assets might in- Clude billions of dollars (not to mention other currencies) worth of fixed and liquid assets is going to have a far less accurate picture of his economic empire than a poverty-stricken laborer whose wealth consists of two pairs of faded den- Re: i) ims. The testator should know, under ordinary cir- cumstances, his relatives in the most proximate degrees, his knowledge expectedly decreasing as the degrees become more remote. And certainly if the testator thinks, for example, that Adolf Re: ii)joranes AND JURISPRUDENCE river is his father, this would be a sign yy, featator does not know te Proper obj aunty unless of course Hitler é his fath i the 8 Of hig er) isnot required, in order for this re it, that the testator know the legal na tra will with the erudition of a civiist, aig, he need know is that the document he jg execu, ing is one that disposes of his property up death Re ii) ‘Uisite ty by prese 3, Legal importance and implication of mental capaci the law is interested in the legal consequences of the testater mental capacity or incapacity, not in the medical aspects ¢ mental disease, Conceivably, the testator could be mentaly aberrant medically but testamentarily capable or, vice versa mentally competent medically but testamentarily incompetent The criterion is simple: as long as the testator, at the tin he made the will, was capable of perceiving the three thing mentioned above, he has testamentary capacity, whatever ely he may be medically, Otherwise, he has no testamentary @ pacity, no matter what else he may be medically. As explained in Ortega v, Valmonte (478 SCRA 247 [2005 “Between the highest degree of soundness of and memory which unquestionably carries wit 7 fu testamentary capacity, and that degree of men” theaetttation generally known as insanity oF iio incapacigy witberless degrees of mental capacity ty thatimege sind while on one hand it has been Me seane of agkness of mind, oF partial imbectlty ineapabie Cals OF from age, will not render a Perr Persons aking @ will; a weak or feeblemiee, Standing tke a valid will, provided he has une know what te LeMOrY sufficient to enable ME pe 15 disposing’ #8 About to do and how or 0 WHIM g 6 Of his property, To constitute @ Sind mind, it is not necessary that thee OF unimpaired or unshatiered PY Once: Ihas bee entary cen hel estamen| all S NOt nee eld that t son st nuindart 801 Tesrawmentary SUCCESSION ally be insane or of unsound mind.” {citing Alsua- sv. CA, (92 SCRA 332 [1979)) 4. Presumption: General rule—rebuttable presumption sanity (Article 800) tances of rebuttable pre- (a) Exceptions—Two ins sumption of insanit i) when the testator, one month or less, be- fore the execution of the will was publicly known to be insane (Article 800); ii) when the testator executed the will after be- ing placed under guardianship or ordered committed, in either case, for insanity [un- der Rules 93 and 101, respectively, of the Rules of Court], and before said order has been lifted. [Basis of the second exception is the following statement Torres us. Lopez, 48 Phil. 774, at pp. 811-812: Counsel for the appellee make capital of the tes- tator being under guardianship at the time he made his will, Citing section 306 of the Code of Civil Proce- dure and certain authontties, they insist that the ef- fect of the judgment is conclusive with respect to the condition of the person. To this statement we cannot wnte down our conformity. The provisions of the cited section were taken from California, and there the Su- preme Court has never held what is now urged upon Us by the appellee. The rule announced that in some states, by force of statute, the finding of insanity is conclusive as to the existence of insanity during the continuance of adjudication, 1s found to Test on local statutes, of which no counterpart is found in the Phil- ippines. (32 C.J. 647; Gridley vs. Boggs [1882], 62 Cal. 190; In the matter of the Estate of Johnson [1883], 57 Cal, 529.) Even where the question of in- sanuy is put in issue in the guardianship proceed- ings, the most that can be said for the finding is that it raises a presumption of incapacity to make a will but does not invalidate the testament if competency56 JOTTINGS AND JURISPRUDENCE Aris. 802 sos can be shown. The burden of proving sanity in such case is cast upon the proponents.] 5. Time for determining mental capacity—time of execu- tion of will; no other temporal criterion is to be applied (Article 801). ARTICLE 802. A married woman may make a will without the consent of her husband, and without the a thority of the court. (n) I. An amusingly sexist provision. It contains an errone- ous and unintended suggestion that a married man does not have the same privilege. Il, Suggested rewording: “A married person may make a will without his or her spouse's consent.” ARTICLE 803. A married woman may dispose by will of all her separate property as well as her share of the con- jugal partnership or absolute community property. (n) 1, Same observations as those on the preceding article. Il. Article 97 of the Family Code supersedes this in part: “Art, 97. Bither spouse may dispose by will of his or her interest in the community property.” (n) SUBSECTION 3.—FORMS OF WILLS ARTICLE 804. Every will must be in writing and exe- cuted in a language or dialect known to the testator. (n) 1. A. This article lays down common requirements, 1-¢ requirements that apply to the two kinds of wills recognized by the Code: the attested and the holographic. Articles 805-808 lay down special requirements for at” tested wills. Articles 810-814 lay down special requirements fo holographic wills.et 808 Testantenrary SUCCESSION 87 B. Two common requirements laid down by Art. 804: Re: Re: (1) in writing (2) ina language or dialect known to the testator. ills (the testamentum nuncupativum of (1) Oral ¥ the Institutes) are not recognized in the Code. [Such wills are allowed under the Code of Muslim Personal Laws of the Philippines [PD 1083}, Art. 102(2]). (2) a) _ Iv is otiose, for the purpose of this article, to attempt to draw a distinction between a language and a dialect, That is best left to linguists and cultural anthropologists. b) The provisions of Article 804 are manda- tory. Consequently, failure to comply ith the two requirements nullifies the will. Suroza vs. Honrado 110 SCRA 388 (1981) AQUINO, J.: Should disciplinary action be taken against re- spondent judge for having admitted to probate a will, which on its face is void because it is written in Eng- lish, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the no- tary as admitted by the notary himself? xxx x 200% Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923 xxx. They were childless. They reared a boy named Agapito who used the surname Suroza and who considered them as his Parents xxx. Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Govern-58 JOTTINGS AND JURISPRUDENCE. ment. That explains why on her death she had accu- mulated some cash in two bank: Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in 1953 when he was declared an incompetent xxx. XXX XXX 20x On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl- friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of Agapito and as her grand- daughter xxx. Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito xxx. Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years old. ‘That will, which is in English, was thumbmarked by her. She was illiterate. Her letters in English to the Veterans Administration were also thumbmarked by her xx. In that will, Marcelina bequeathed all her es- tate to her supposed granddaughter Marilyn. Marcelina died on November 15, 1974 at the Veteran's Hospital in Quezon City. At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square me- ter lot and house in that place. xxx On January 13, 1975, Marina Paje, alleged to be @ laundrywoman of Marcelina xx and ‘the executrix in her will xxx filed 2 a petition for the probate of Marcelina’s alleged will, The case was assigned to Judge Reynaldo P, Honrado, As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S Yuipco, to hear the evidence, xxx In an order dated March 31, 1975, Judge Hon- rado appointed Marina as administratrix. On the fol- lowing day, April 1, Judge Honrado issued two orders Art. 804Art 805, TesTAMENTARY SUCCESSION directing the Merchants Banking Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy sheriff to eject the occupants of the testatrix’s house, among whom was Nenita V. Suroza, and to place Marina in possession thereof. ‘That order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina’s estate. She and the other occupants of the decedent's house filed on April 18 in the said pro- ceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito’s guardian and that Marilyn was not Agapito’s daughter nor the decedent's granddaughter. xxx In spite of the fact that Judge Honrado was al- ready apprised that persons, other than Marilyn, were claiming Marcelina’s estate, he issued on April 23 an order probating her supposed will wherein Marilyn was the instituted heiress xx. On April 24, Nenita filed in the testate case an omnibus petition “to set aside proceedings, admit op- position with counter-petition for administration and preliminary injunction.’ Nenita in that motion reiter- ated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and at- tested, that it was procured by means of undue influ- ence employed by Marina and Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick, xxx 2x xxx To that motion was attached an affidavit of Zenaida A. Pefiaojas, the housemaid of Marcelina, who swore that the alleged will was falsified xxx. poo rox roo 5960 JOTTINGS AND JURISPRUDENCE In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Su. roza reiterated her contention that the alleged will is void because Marcelina did not appear before the no- tary and because it is written in known to her xxx nglish which is not Judge Honrado in his order of June 8, 1976 ‘de- nied’ the various incidents ‘raised’ by Nenita xxx. Instead of appealing from that order and the or der probating the will, Nenita ‘filed a case to annul’ the probate proceedings xxx. That case xxx was also assigned to Judge Honrado, He dismissed it in his or- der of February 16, 1977 xxx. Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding. About ten months later, in a verified complaint fated October 12, 1978, filed in this Court, Nenita charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiter~ ated her contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will and that she did not know English, the lan- guage in which the will was written. (In the decree of Probate Judge Honrado did not make any finding that the will was written in a language known to the testa tnx.) 2X xxx xxx The 1978 complaint against Judge Honrado was brought to the attention of thi Court in the Court Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of the ‘Court of Appeals for investigation, report and recom- mendation, He submitted a report dated October 7+ 1981 ber 14, 1978, Nenita filed in the Court Of Appeals against Judge Honrado @ petition for cer Uoran and promibition wherein she prayed that the will, the decree of probate and all the proceedings #8 the probate case be declared void Art HnAnt, 805, TeSTAMENTARY SUCCESSION Attached to the petition was the affidavit of Do- mingo P. Aquino, who notarized the will. He swore that the testatrix and the three attesting witnesses did not appear before him and that he notarized the will just to accommodate a brother-lawyer on the condition’ that said lawyer would bring to the notary the testatrix and the witnesses but the lawyer never complied with his commitment, ‘The Court of Appeals dismissed the petition be- cause Nenita’s remedy was an appeal and her failure to do so did not entitle her to resort to the special civil action of certiorari xxx. Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the adminis- trative case for having allegedly become moot and academic. We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void will should have inherited the decedent's estate. KKK KKK ‘Administrative action may be taken against a judge of the court of first instance for serious miscon- duct or inefficiency xxx. Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be inex- cusably negligent if he failed to observe in the per- formance of his duties that diligence, prudence and circumspection which the law requires in the rendi- tion of any public service. (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119) In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked’ by an obviously illiterate testatrix, could have readily perceived that the will is void. In the opening paragraph of the will, it was stated that English was a language ‘understood and known’ to the testatrix. But in its concluding para- graph, it was stated that the will was read to the tes- 61iS] Jomixcs axp Jurisprt DENCE, Ar slated into F;ilipino lan, tatrix ‘and was tran: guage.” xxx That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory Provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which Was not known to the Igorot testator, is void and was disallowed (Acop v. Piraso, 52 Phil, 660). XxX XXX Xxx, In spite of the absence of an opposition, respon- dent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly exe- cuted, Under the circumstances, we find this negli- gence and dereliction of duty to be inexcusable. WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to his salary for one month is imposed on respondent Judge (his compulsory retirement falls on December 25, 1981) ite c) Neither the will nor the attestation clause eee compliance with this requirement, This can be v948h Capo" trinsic evidence. (Lopez vs. Liboro, 81 Phil. 429 [1948]; nong-Noble vs. Abaja, 450 SCRA 265 [2005]) d) Presumption of compliance: It may See enabe will sumed that the testator knew the language in whi was written. Abangan vs. Abangan 40 Phil. 476 (1919) AVANCENA, J.: In Court of First In mn September 19, 1917, the ze will executed July, 1916. From the decisi nents appealed. WOK NKant HOS TesTAMENTARY SUCCESSION x x xX (ijt is alleged the records do not show that the testatrix knew the dialect in which the will is written. But the circumstance appear ing in th f that same was executed in the city of Cebu and in the dialect of this locality aoe are the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to Pre” eee that she knew this dialect in which this will is written For the foregoing con! appealed from is here pellants. e will itsel siderations, the judgment by affirmed with costs against the ap} To the same effect was the ruling in Gonzales vs. Laurel, 46 Phil. 750 (1923). On the authority of these cases it order for the presumptions to apply, must appear: 1) the will must be in generally spoken in the place o} 2) the testator must be a nai said locality seems that, in the following a language or dialect f execution; and tive or resident of ne language require- g, compliance with t these attendant cir- Properly speakin} .d put proved by ment is not then presume cumstances. 1 Y% ARTICLE 805. Every will, 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 ' e or more credible wit- ubseribed by thre! ” testator and of one another. son requested by him to write hin ae eat he instrumental witnesses of the will shall thes Ign, as aforesaid, each and every page thereof, except the lust, on the left margin, and all the pages shall be num- cred coorclatively in letters placed on the upper part of each page. other than a holographic in the presence of thi The testator or the pert64 Jornnas avo JURISPRUDENCE Ant 805, The attestation shall state the number of Pages used upon which the will is written, and the fact that the testa- tor signed the will and every page thereof, or caused some other person to write his name, under his express direc. tion, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the Pages thereof in the presence of the testator and of one another, If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) ARTICLE 806. Every will must be acknowledged be- fore 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. (n) 1. These two articles lay down the special requirements for attested (ordinary /notarial) wills, as follows: (1) subscribed by the testator or his agent in his presence and by his express direction at the en thereof, in the presence of the witnesses; (2) attested and subscribed by at least three credible i f witnesses in the presence of the testator and 0! one another; (3) the testator, or his agent, must sign every = except the last, on the left margin in the presen of the witnesses; the (4) the witnesses must sign every page, except 0 last, on the left margin in the presence of the tator and of one another; (5) all pages numbered correlatively in letters 0 upper part of each page; (6) attestation clause, stating n the a) the number of pages of the will; nde b) the fact that the testator or his agent Ug his express direction signed the every page thereof, in the presenceArt, B06, TESTAMENTARY SUCCESSION witnesses; the fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another; (7) acknowledgment before a notary public. Il. A, Some Discrepancies: 1. Par. 1, Article 805—No statement that the testa- tor must sign in the presence of the witnesses. Par. 2, Article 805—No statement that the testa- tor and the witnesses must sign every page in one another's presence. [These two things, however, are required to be stated in the attestation clause. The only conclusion, therefore, is that these are requirements that are to be complied with, since it cannot be presumed that the attestation clause was meant to tell a lie.] On the other hand, the attestation clause is not required to state that the agent signed in the tes- tator’s presence—a circumstance mandated by the first and second paragraphs of the article. ate—There is no requirement that an B. Indication of D: .d, unlike a holographic attested will should be date will. Consequently, a variance between the indicated dates of execution and acknowledgment does not in itself invalidate the will, (Ortega v. Valmonte, 478 SCRA 247 [2005}). the Requirements: Re: (1) subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the wit- nesses: Ill. Some Comments on a) subscribed by the testator—The article uses two words, referring to this requirement, apparently interchangeably: subscribe and sign,66 Jortines and JurispRuvence An Strictly Speaking, they are not exactly synony- mous. To subscribe necessarily denotes writing, more precisely, to write under; to sign simply means to place a distinguishing mark, Thus, Signing has a broader meaning than subscrib- ing; not every signature is necessarily a sub- scription; not every distinguishing mark is a writing, i) Thumb mark as signature. Is the placing of the testator’s thumb- Print, for instance, a signature within the contemplation of this article? Does it comply with the statutory requirement? Payad vs. Tolentino 62 Phil. 848 (1936) GODDARD, J: Both parties i the trial court de: of Leoncia Tole: the will in que: in this case appeal from an order of ‘nying the probate of the alleged will tino, deceased. That court found that Stion was executed by the deceased on the date appearing thereon, September 7, 1933, one Gay before the death of the testatrix, contrary to the fOntention of the oppositor that it was executed after her death. The court, however, denied probate on the Bround that the attestation clause was not in confor- mity with the requirements of law in that it is not Stated therein that the testatrix caused Attorney Al- mario to write her name at her express direction ox As to the contention of the petitioner-appellant, €s stated above, the trial court denied probate of the wil on ‘the sole ground that the attestation clause Goes not state that the testatrix requested Attorney Almario to write her name, The last paragraph of the Questioned will reads in part as follows: nn Prueba de toro lo cual, firmo el presente tes- | far nie gon mi marca digital, porque no puedo esta: | Par mi firma a causa de mi debilidad, rogando alArt. 806, TeSTAMENTARY SUCCESSION abogado M, Almario que ponga mi nombre en el sitio donde he de estampar mi marca digital ***.” ‘The evidence of record establishes the fact that Leoncia Tolentino, assisted by Attorney Almario, placed her thumb mark on each and every page of the questioned will and that said attorney merely wrote her name to indicate the place where she placed said thumb mark. In other words, Attorney Almario did not sign for the testatrix. She signed by placing her thumb mark on each and every page thereof. “A stat- ute requiring a will to be ‘signed’ is satisfied if the sig- nature is made by the testator's mark.” (Quoted by this court from 28 R.C.L. p. 117; De Gala vs. Gonzales and Ona, 53 Phil. 104, 108.) It is clear, therefore, that it was not necessary that the attestation clause in question should state that the testatrix requested At torney Almario to sign her name inasmuch as the tes: tatrix signed the will in question in accordance with law. of the trial court is reversed and the questioned will of Leoncia Tolentino, de- ceased, is hereby admitted to probate with the costs of this appeal against the oppositor-appellant. ‘The appealed order Matias vs. Salud L-10751 June 23, 1958 REYES, J.B.L., Ji! Appeal from an order of the Court of First In- stance of Cavite xxx denying the probate of the pur- ported will of the late Gabina Raquel. Pree cd The document in question appears to be com- fhe lower half of the second posed of three pages. On # page, preceding the attestation clause appears. the Signature “Gabina Raquel” which is apparently of ad- mitted authenticity. Alongside it is a smudge in violet ink, with blurred ridge lines, claimed by the propo- nents to be a thumbmark affixed by the testatrix. On the third page, at the end of the attestation clause appear the signatures appearing on the left margin of each page: and on the upper part of each page’s left 67CE JorrinGs AND JURISPRUD! _- violet ink smudge similar to the one argin appears & violet ink s! : ay scribed, accompanied by the written reviously di : Mords “Gabina Raquel” and underneath said name spy Lourdes Samonte.” XXX XXX XXX The proponent’s evidence is to the effect that the deceased instructed Attorney Agbunag to draft her ‘ilk, that it was brought to her in the morning of ‘January 27, 1950; that she had the witnesses sum- moned and received them in the ‘ante sala’ of her house: that when the witnesses were seated around a table with her and Attorney Agbunag, the will was read by the latter; that Gabina Raquel manifested conformity thereto and thumbmarked the foot of the document and the left margin of each page. Allegedly upon Agbunag’s insistence, she attempted to sign with his fountain pen, but was only able to affix the signature at the end of the testamentary dispositions in the lower half of page two because immediately af- ter, she dropped the pen, grasping her right shoulder and complaining of pain, After 20 minutes, Attorney Agbunag, seeing that Gabina Raquel could not pro- ceed, instructed Lourdes Samonte to write “Gabina Raquel by Lourdes Samonte” next to each, thumb- coe ete avitnesses Lourdes Samonte, left margin of each page. Itis to be. cleus ee Modesta Gonzales, a Gaye i noted that wines: Uo sree ee eee en eee PreMaure anal enced 19 be Sullering from high blood eet ne 's expert evidence was to the her memory eect that nemory was impaired, and unusual might cost her life. The probate lad, a niece ot Ging bee tnal. Alter he Court of Fir PRA Bees A ca gadueh the case was set for “avn Suge Pre Gonzales of the phony the camant Of Cavite renelered judgment the documents adminnion te eo tee and denied re following grounda, | f2 Probate, principally om 1) Thac a te thet Heat the attestation et © the testatrix clause did not U1 and even RUE and the witnesses signed of the will, and while the Art. 805Art, 806 ‘TesTAMENTARY SUCCESSION teft margins of each page exhibit the words “Gay bina Raquel by Lourdes Samonte,’ the attest tion does not express that Lourdes was ¢ pressly directed to sign for the testatrix. xxx KK ‘The trial court refused credence to the evidence for the proponents on the basis of the exper, testi- mony of Captain Jose Fernandez of the Philippine Conetabulary’s Criminal Laboratory, t0 the effect that (1) fingerprints appearing at the end and eft margins () hewill were impressed over the name of the testa trix, and after the name was written, contrary to what ‘sserted; (2) that the words the proponent’s witnesses a’ “Gabina Raquel by Lourdes Samonte” in the upper left tang margin of page two of the will were falsified and appear to have been written over a previous tracing; {3) that the person who wrote “Gabina Raquel by teurdes Samonte” is different from the one who wrote tourjes Samonte” as signature of an attesting wit~ ness; (4) that the signature ‘Lourdes Samonte’ on the left margin of page 3 of the testament was written Only after that of Felipa Samal, when the testimony for the proponent was that they were written in the reverse order; and (5) that the pen used in signing TGabina Raquel” at the foot of the will had separated nibs, while the other signatures in the document were ‘en with a round point pen, again contrary to the Contention for the proponent that only one pen was used. After careful consi jderation of the testimony on record, we are of the opinion that the facts adverted to by the expert for the contestant do not clearly support the conclusions drawn by him. Thus, his assertion that the fingerprints were affixed after writing the name of the testatrix appears to be an inference drawn from the fact that the ink of the writing failed to spread along the ridge lines of the fingerprints. This conclusion obviously failed to take into account the fact that the evidence is that some 10 or 20 minutes lapsed between the affixing of the fingerprints and the writing of the marginal signatures, due to the fact that they were not written until after a long wait for the testatrix’s attack of pain to subside. There was suffi- cient time for the fingerprint (which was made in rub- 670 Jornncs AND JoRISPRUDENCE ver stamp ink} t0 dry, and recognized authorities on the matter point out that ‘ink lines over rugi stamps will spread out if the stamp is not dry* (ge. erman-O'Connel, Mocern Criminal Investigation, 24 Ed, p. 453}; and ‘if the stamp impression is alloved to dry thoroughly before the writing is written over i, the ink will not run out as it does on a damp ink line! (Osborn, Questioned Documents, 2d Ed., p. 514) To such effect, the only composition of the rubber stamp ink no doubt contributes. Thus, while the spreading out or running out of the writing ink along the stamp- ing ink lines proves that the writing was made later, the absence of spread does not prove that stamping ink lines were made after the writing was done. 2K KKK Finally, the contestant urges that the fingermark of the testatrix can not be regarded as her valid signa Tn Since it does not show distinct identifying ridge lines; and thence, that the attestation clause, tral” Teed fatlier in this opinion, should be held defec- sen eeause it fails to state ‘that Lourdes Samonte tera for the testator, This Court has repeatedly held Wat the legal requisite that the will should be signed by testator ni atstied by a thumbprint or other mar ts, Oey, him (De Gala vs, Ona, 83 Phil. 104; ee me. 58 Phil. 479; Neyra vs. Neyra, 2 and that wg; Eibt0, 46 O.G. [Supp. to No. 11 2210 itis unpatete Such mark is affixed by the dees that qnnceSsary to state in the attestation oes Tequest (he Forson wrote the testator’s name Tin 1 1224 ¥S: Tolentino, 62 Phil. 849). WM ge. some was Setibed in the youseS. the signing by mark “joes var nt Will oF in the attestation clause Hee Of sucha hat the Court ever held that the # : “scription is a fatal defect. aie Suesig Guat Felies on the case of Garcis,Y wis Cour denied pr 8067, Nov. 29, 1951, WHEE int Cross write Probate holding that a will signed gull Cent signarg ae the testator's name is NOt Fy wa Made thant". But in that case NO shewnabine Signature: 2 Cross mark was the testatol™ wh fe MOU use eT 88 any explanation BE? 9 In “© 8.cross when he knew how 10 88Art, 806 ‘TeSTAMENTARY SUCCESSION case now before us, it was shown that the herpes 20S- fer that afflicted the right arm and shoulder of the tes- tatrix made writing a difficult and painful act, to the extent that, after writing one signature 0% the second page, she dropped the pen because of an attack of pain that lasted many minutes, and evidently dis- Couraged attempts to sign. ridge impressions, it is 50 dependent on aleatory circumstances (consistency of ne ink, overinking, slipping of the finger etc.) as t require a dexterity that can be expected of very few persons; and we do not believe testai0r should be re- quired to possess the skill of trained officers. It is to eessnceded that where a testator employe TO unfa- miliar way of signing, and both the attestation clause and the will are ‘silent on the matter, such silence is 4 factor to be considered against the authenticity of the testament; but the failure to describe the unusual sig- nature by itself alone is not ‘sufficient to refuse pro- bate when the evide! ‘sce for the proponent fully satis: fies the court (as it does satisfy us 1 this case) that wee iin was executed and witnessed aS required by Taw, As to the clarity of the ment appealed from is WHEREFORE, the judet dered admitted to reversed and the document x%x Or probate. ___Tothe same effect were the rulings in De Gala v. Gonzales, 53 Phil, 104 (1929); Dolar v. Diancin, 55 Phil. 479 (1930); Lopez v. Liboro, 81 Phil. 429 (1948). On the authority of these rulings, therefore, the testator’s thumbprint is always a valid and sulfficien’ signature for the purpose of complying with the requirement of the article. While purpose of comes, the testator was suffering from. Cote infirmity which made the writing of {he testator’s name difficult or impossible, there scems to be no basis for limiting the valid~ ‘s of illness or infirmity. As ob- ity of thumbprints only to case: served by the Court in De Gala v. Gonzales, supra, anovne the tase of Bates of Maria Salva, G.R. No. 26861, [May 17, 1927]: wre, the law says that the will ator or testatrix, the law is * sxx When, therefor shall be ‘signed’ by the test 712 Jortines AND JURISPRUDENCE he customary written signatu: suited nat oe 7 or testatrix’s thumbmark. a4 Lo oy on put upon the word ‘signed’ by most constr the origina meaning of a signum or sign, meaning of a sign manual A statute requiring & will to be ‘signed’ jenature 1s made PY the testator’s si 116-117)” ji) Across aS signature: Garcia vs. Lacuest@ ‘90 Phil. 489 (1951) PARAS, C.J: cision of the Court of reado dated the Hocane This is an appeal from a de Appeals disallowing the will of Antero Me January 3, 1943, The will is written in ‘dialect and contains the following attestation clause: Bote undersigned, by these Present do Nea edie foregoing testament of ‘Antero Below ais signed by himself and also by See is ame en ‘his attestation Cau and that of the let margin of the three PIES testation eb three the continuation of this a dialect which ig’ this will is written In nioca™® eed ea ened Bed understood PY er in etter wh it bears the corresponding "4 of ittter which compase of three veages and A eee ern of ses, and the witnesses 0 6 nd every ence of crs of the testator and all and each Us witnesses. “In testi es meng, thie nimony, whereof, We sign this Sannin he third day of Janets) one undred forty-three, (1943) AD. (Sgd.) “NUMERIANO EVANGE™ (Sed) “ROSENDO CORT eS (Sgd.) “Stantially to the law and may ve This Untenahle UES to the attestation ceca With the’ because said signatures are in Cy et hana fl Mandate that the will be 5 7 use gh BY Of all its pages. Ie an at "" slaned by the three witnessesArt. 806, TESTAMENTARY Succession tom thereot, be admitted as sufficient, it would be easy auch clause to a will on a subsequent oe ign and in the absence of the testator ant any all of the witnesses, a 200 RX 2K BAUTISTA ANGELO, J, dissenting | dissent. In my opinion the will in question has Substantially complied with the formalities of the law and, therefore, should be admitted to probate. It ap- Pears that the will was signed by the testator and was attested by three instrumental witnesses, not only at the bottom, but also on the left-hand margin. The witnesses testified not only that the will was signed by the testator in their presence and in the presence of each other but also that when they did so, the at- testation clause was already written thereon. Their testimony has not been contradicted. The only objec- tion set up by the oppositors to the validity of the will is the fact that the signatures of the instrumental wit- nesses do not appear immediately after the attesta- tion clause. This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40 Phil. 476), this court said that when the testamentary disposi- tions ‘are wholly written on only one sheet signed at the bottom by the testator and three witnesses (as in the instant case), their signatures on the left margin of said sheet would be completely purposeless.” In such a case, the court said, the requirement of the signatures on the left hand margin was not necessary because the purpose of the law—which is to avoid the substitution of any of the sheets of the will, thereby changing the testator's dispositions —has already been accomplished. We may say the same thing in ‘connection with the will under consideration because while the three instrumental witnesses did not sign immediately after the attestation clause, the fear en- tertained by the majority that it may have been only added on a subsequent occasion and not at the sign- ing of the will, has been obviated by the uncontra- dicted testimony of said witnesses to the effect that 8990 Jorncs AND JurispRUDENcE such attestation clause was already written in the wi when the same was signed.” Cagro was not a unanimous decision. Three justices dissenteg opining that the failure of the witnesses to sign at the bottom at the attestation clause was not fatal. The more recent case of Azuela us Court of Appeats (487 SCRA 119 [2006)), however, reiterated the Cagro ruling, Azuela was a unanimous decision. Held the Court in Azuela: “An unsigned attestation clause can hot be considered as an act of the witnesses since the omission a their signatures at the bottom thereof negatives their participation. ‘The Court today reiterates the continued efficacy of Cagro." ©) The fact that the attestation clause was writer on a separate page has been held to be a matter of “minor importance” and apparently will not a fect the validity of the will (Villaflor v. Tobias, 53 Phil. 714 (1927), 4) An attestation clause is mandatory for atest wills. It is separate and distinct from eek knowledgment clause (certification of ‘peta edgment). These two cannot be merged. ¥s. Dozen Construction, 632 SCRA 594 [2 Re) acknowledgment before a notary public: (a) Acknowledgment, defined: iho “An acknowledgment is the act of one we has executed a deed in going before some nis pent olficer or court and declaring it © take? wet deed. It involves an extra step uM erg we whereby the Signatory actually declares ' un feat) Public that the same is his or he" Oo, {ee Bet and deed. The acknowledgment #2 sale” ‘Aral will has a ‘two-fold purpose: () © Suard the testators wishes long after Bis € ore in 2] © assure that his estate is @ é (t he manner that he intends it (0 ) P48. Tambago, 544 SCRA 393 [2008]Art 806 TEestaMENTaRY Succession (b) Javellana vs. Ledesma 97 Phil. 258 (1955) REYES, JBL, uy: By order of July 23, 1953, the Court of - Stance of Iloilo admitted to probate the decurments the Visayan dialect xxx as the testament and codicil duly executed by the deceased Da. Apolinaria Le- desma Vda. de Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana, Glo- tia Montinola de Tabiana and Vicente Yap as wit nesses. The contestant, Da. Natea Ledesma, sister and nearest surviving relative of said deceased, ap- pealed from the decision, insisting that the said ex- hibits were not executed in conformity with law. 200 The issue was concentrated into three specific questions: (1) whether the testament of 1950 was exe- cuted by the testatrix in the presence of the instru- mental witnesses; (2) whether the acknowledgment clause was signed and the notarial seal affixed by the notary without the presence of the testatrix and the witnesses; and (3) if so, whether the codicil was thereby rendered invalid and ineffective, These ques- tions are the same ones presented to us for resolu- tion. Rx KKK ‘The most important variation noted by the con- testants concerns that signing of the certificate of ac- Knowledgment (in Spanish) appended to the codicil in Visayan, xxx. Unlike the testament, this Codicil was executed afier the enactment of the new Civil Code, and, therefore, had to be acknowledged before a no- tary’ public (Art. 806). Now, the instrumental wit” nesses (who happen to be the same ones who attested the will of 1950) asserted that after the codicil had been signed by the testatrix and the witnesses #1 San Pablo Hospital, the same was signed and sealed by notary public Gimotea on the same occasion, O+ other hand, Gimotea affirmed that he did not do so, but brought the codicil to his office, and sig 91_— 92 Jjorvgs AND JURISPRUDENCE variance does not necessarily im- or there version ‘of truth on the part of the Suablshed phenomenon, the tendency of the mind, etecalling past events, 10 substitute the usual and i ree for what differs slightly from it {i Moore on habitual Bre, The Ellen McGovern, 27 Fed. 868, 870). ‘at any rate, as observed by the Court below, whether or not the notary signed the certification of deknowledg-ment in the presence of the testatrix and the witnesses, does not affect the validity of the codi- iL Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and wit: nesses must sign in the presence of each other, all that is thereafter required is that “every will must be ac: pete hva before a notary public by the testator and aveeuginge (Art, 806); ie., that the latter should svow to the certifying officer the authenticity of their imatures and the voluntariness of their actions in in the at oe disposition. This was done realy ase before us. The subsequent signing an ciao by the notary of his certification that the tes" theery gs, duly acknowledged by the participants the testamentary of the acknowledgment itself nor ° ut of the Brus Hence, their separate execution Se not be said i. of the testatrix and her witnes® Should be connate Vimlate the rule that testamen! Pulgueras, So meee Without interruption (andalis » 59 Phil. 643}, or, as the Roman max PULS it “uno ‘ 0 teversibie soem aie ac tempore in eodem loots, olding. Tt a, S78 Was committed by the Court t Civil co eo aor and ten comtain. words requiring Y ee the testam iste ‘ament itmesses sho nowlede® executed, OT the sa uid _acks Br was ame day or occasion that The fi decision 2 oe a itmed with Coste emitting the will to probate 5° 'gainst appellant,93 Art, 806 TESTAMENTARY SUCCES Ratio in Javellana: The certification of acknowledgment need not be signed by the notary in the presence of the testator and the witnesses. Obiter; Article 806 does not require that the testator and the witnesses must acknowledge on the same day that it was executed. To the same effect was the holding in Ortega vs. Val- monte (478 SCRA 247 [2005}). Logical inference: Neither does the article require that the testator and the witnesses must acknowledge in one another’s presence, [If the acknowledgment is done by the testator and the witnesses separately, all of them must retain their respective capacities until the last one has acknowledged. ] Quaerendum: Should the notary be present when the will is executed? ¢) The notary public cannot be counted as one of the attesting witnesses. Cruz vs. Villasor 54 SCRA 31 (1973) ESGUERRA, ‘The only question presented for determination, on which the decision of the case hinges, is whether the supposed last will and testament of Valente 2. Cruz xxx was executed in accordance with law, par- ticularly Articles 805 and 806 of the new Civil Code, the first requiring at least three credible witnesses to attest and subscribe to the will, and the second re- quiring the testator and the witnesses to acknowledge the will before a notary public. Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr. Francisco ‘aiares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary Public before whom the will was supposed to have been ac- knowledged. Reduced to simpler terms, the question Was attested and subscribed by at least three credible witnesses in the presence of the testator and of each94 JortinGs AND JURISPRUDENCE jdering that the three attesting witnesses oeyst appear before the notary public to acknowledge qeetanme: Ae the thine witncs the notary public himself, petitioner argues that the result is that only two witnesses appeared before the notary public to Acknowledge the will. On the other hand, private re- spondent-appellee, Manuel B. Lugay, who is the sup- posed executor of the will, following the reasoning of the trial court, maintains that there is substantial compliance with the legal requirement of having at least three attesting witnesses even if the notary pub- lic acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows: other, consi “It is said that there are practical reasons for upholding a will as against the purely techni- cal reason that one of the witnesses required by law signed as certifying to an acknowledgment of the testator’s signature under oath rather than as attesting the execution of the instrument.” coimit@,,teishing the merits of the conficting of the on the Parties, We are inclined to sustain tht Guenioe Reliant that the last will and testament in The nota not executed in accordance with law. cdged na Public before whom the will was ‘acknowl witness ane be considered as the third instrument his beagle he cannot acknowledge before nimsel means 10 ci8Red the will. To acknowledge before 262; Casg OW Wavellana v. Ledesma, 97 Phil. 258; Benuine, to eto, 100 Phil, 239, 247); to own 28 tront of precedint’ {© @dmit; and ‘before’ means ft chster &, ® in space or ahead of. (The Buage, p, 72, oPedie Dictionary of the English Lane #Y Of the Engine & Wagnalls New Standard Diction tional Diet Language, p, 252; Webster's New Mid Witness gent 24, p. 245.) Consequently? We agg te the notary patie rimself, Be woe ‘ ‘nt, or admit his having SiC pe im: 9 i pea: This cannot be done pect thier ‘Onality into two so that 0 © Making ett acknowledge his tain wor gst the will. To permit such & Md be sanctioning a sheer abS4! An_— Art, 806 STAMENTARY SUCCI Furthermore, the function of notary public is, among others, to guard against any illegal or immoral arrangements. Balinon v, De Leon, (50 O.G. 583). That function would be defeated if the notary public were one of the attesting or instrumental witnesses. For them (sic) he would be interested in sustaining the validity of his own act. It would place him in an inconsistent position and the very purpose of the ac- knowledgment, which is to minimize fraud (Report of the Code Commission, pp. 106-107), would be thwarted. Admittedly, there are American precedents hold- ing that a notary public may, in addition, act as a witness to the execution of the document he has no- tarized. (Mahilum v. Court of Appeals, 64 0.G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S.E. 2d. 346; In Re Doug- las’ Will, 83 N.Y.S. 2d. 641; Ragsdal v. Hill, 269 S.W. 2d. 911; Tyson v. Utterback, 122 So. 496; In Re Bay- bee's Estate, 160 N.W. 900; Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this jurisdiction or are not decisive of the issue herein, ‘because notaries public and witnesses re- ferred to in the aforecited cases merely acted as in- strumental, subscribing or attesting witnesses, and not as acknowledging witnesses. Here the notary pub- lic acted not only as attesting witness but also as ac- knowledging witness, a situation not envisaged by Ar- ticle 805 (sic) of the Civil Code which reads: “ART. 806. Every will must be acknowl- edged before a notary public by the testator and the witnesses, The notary public shall not be re- Quired to retain a copy of the will or file another with the office of the Clerk of Court.” [Under- Scoring supplied] To allow the notary public to act as third wit- Or one of the attesting and acknowledging wit- TeaneS: would have the effect of having only two at- Teng witnesses to the will which would be in con- Vention to the provisions of Article 805 requiring at ness, 98,96 JortINGs AND JURISPRUDENCE ARS, 807-443 redible witnesses to act as such and of ee 606 ‘vhich requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will, The result would be, as has been said, that only two witnesses appeared before the notary public for that purpose. In the circumstances, the law would not be duly ob- served Probate of the last will and testament of Valente Z, Cruz xxx is declared not valid and hereby set aside. 4) Quite obviously, the notary public must be duly commissioned for the locality where the acknowledg ment is made. Otherwise, the notarization—and the will—will be void. (Guerrero us. Bihis, 521 SCRA 34 [2007}) €) Affixing of documentary stamp is not requited for validity. (Gabucan vs. Manta, 95 SCRA 1 [1980}). emt CLE 807. If the testator be deaf, or a deafmut# wise, he it aay read the will, if able to do 80; Municate to hin enate two persons to read it an@ “og. tents thereot tae in some practicable manner, th a! be read to him twice’ the testator is blind, the ae ait es8e8, and again) ONCE, by one of the subscribes yw Will is acknow et i the notary public before ¥! . (n) = © two Ht articl . jireme stators, °® @Y down special rea it f song’ble to read—he must desig it im, f° Tead the will and COMME cof ; it ' Some practicable manner }Ant S06 TesTAMENTARY SUCCESSIC quired for validity that the testator affix his signature ahead of the witnesses. Note that Art. 699 of the Spanish Code has not been reproduced in ours +699. Todas las formalidades expresadas en esta seccidn se practicaran en un solo acto, sin que sea licita ninguna interrupcion, salvo ta que pueda ser motivada por algin aceidente pasajero.” “ART. 699, All the formalities men tioned in this section shall take place con secutively, and no interruption shall be al lowed except such as may be caused by some trifling occurrence.” (Fisher, The Spanish Cruil Code, p. 273) Re: (5) all pages numbered correlatively in letters on the upper part of each page; As in No. 3, supra, there is a mandatory and a directory part to this requirement: 1. the mandatory part—pagination by means of a conventional system. The obvious purpose of this is to prevent insertion or removal of pages. 2. the directory part—the pagination in letters on the upper part of each page The case of Azuela v. CA (487 SCRA 119 {2006}) may be an indication of a future endorsement of this view. Re: (6) attestation clause, stating: the number of pages of the will; 2. the fact that the testator or his agent under his express direction signed the will and every page thereof in the presence of the witnesses; and 7 3. the fact that the witnesses witnessed and signed the will and every page thereof in theornnas ANP “JuRIsPRUDENCE a jortincs 86 : Ieasiano holding cannot, a no: ThE - ores on Teast’ a departure from the rule that the wil should not, BE a y the witnesses on every page. The carbon should be Sr be noted, was regular in all respects. Should duplicate, it exh ‘Ay have been di egarded and the carbon the ist COPY FT gered? There was @ dilemma involved here

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