G.R. No. L-43082             June 18, 1937
I direct that ten (10) years after my death my property be given to
PABLO LORENZO, as trustee of the estate of Thomas Hanley,
deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of
the estate of Thomas Hanley, deceased, brought this action in the Court of
First Instance of Zamboanga against the defendant, Juan Posadas, Jr., then
the Collector of Internal Revenue, for the refund of the amount of P2,052.74,
paid by the plaintiff as inheritance tax on the estate of the deceased, and for
the collection of interst thereon at the rate of 6 per cent per annum, computed
from September 15, 1932, the date when the aforesaid tax was [paid under
protest. The defendant set up a counterclaim for P1,191.27 alleged to be
interest due on the tax in question and which was not included in the original
assessment. From the decision of the Court of First Instance of Zamboanga
dismissing both the plaintiff's complaint and the defendant's counterclaim,
both parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga,
Zamboanga, leaving a will (Exhibit 5) and considerable amount of real and
personal properties. On june 14, 1922, proceedings for the probate of his will
and the settlement and distribution of his estate were begun in the Court of
First Instance of Zamboanga. The will was admitted to probate. Said will
provides, among other things, as follows:
4. I direct that any money left by me be given to my nephew Matthew
Hanley.
5. I direct that all real estate owned by me at the time of my death be
not sold or otherwise disposed of for a period of ten (10) years after
my death, and that the same be handled and managed by the
executors, and proceeds thereof to be given to my nephew, Matthew
Hanley, at Castlemore, Ballaghaderine, County of Rosecommon,
Ireland, and that he be directed that the same be used only for the
education of my brother's children and their descendants.
6.
the above mentioned Matthew Hanley to be disposed of in the way he
thinks most advantageous.
xxx     xxx     xxx
8. I state at this time I have one brother living, named Malachi Hanley,
and that my nephew, Matthew Hanley, is a son of my said brother,
Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best
interests of ther estate to appoint a trustee to administer the real properties
which, under the will, were to pass to Matthew Hanley ten years after the two
executors named in the will, was, on March 8, 1924, appointed trustee. Moore
took his oath of office and gave bond on March 10, 1924. He acted as trustee
until February 29, 1932, when he resigned and the plaintiff herein was
appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of
Internal Revenue, alleging that the estate left by the deceased at the time of
his death consisted of realty valued at P27,920 and personalty valued at
P1,465, and allowing a deduction of P480.81, assessed against the estate an
inheritance tax in the amount of P1,434.24 which, together with the penalties
for deliquency in payment consisting of a 1 per cent monthly interest from July
1, 1931 to the date of payment and a surcharge of 25 per cent on the tax,
amounted to P2,052.74. On March 15, 1932, the defendant filed a motion in
the testamentary proceedings pending before the Court of First Instance of
Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff
herein, be ordered to pay to the Government the said sum of P2,052.74. The
motion was granted. On September 15, 1932, the plaintiff paid said amount
under protest, notifying the defendant at the same time that unless the amount
was promptly refunded suit would be brought for its recovery. The defendant
overruled the plaintiff's protest and refused to refund the said amount hausted,
plaintiff went to court with the result herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased,
passed to his instituted heir, Matthew Hanley, from the moment of the
death of the former, and that from the time, the latter became the
owner thereof.
II. In holding, in effect, that there was deliquency in the payment of
inheritance tax due on the estate of said deceased.
 III. In holding that the inheritance tax in question be based upon the
value of the estate upon the death of the testator, and not, as it should
have been held, upon the value thereof at the expiration of the period
of ten years after which, according to the testator's will, the property
could be and was to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the net
amount of the estate subject to said tax, the amounts allowed by the
court as compensation to the "trustees" and paid to them from the
decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his
motion for new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns
the following error besides:
The lower court erred in not ordering the plaintiff to pay to the
defendant the sum of P1,191.27, representing part of the interest at
the rate of 1 per cent per month from April 10, 1924, to June 30, 1931,
which the plaintiff had failed to pay on the inheritance tax assessed by
the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this
appeal: (a) When does the inheritance tax accrue and when must it be
satisfied? (b) Should the inheritance tax be computed on the basis of the
value of the estate at the time of the testator's death, or on its value ten years
later? (c) In determining the net value of the estate subject to tax, is it proper
to deduct the compensation due to trustees? (d) What law governs the case at
bar? Should the provisions of Act No. 3606 favorable to the tax-payer be given
retroactive effect? (e) Has there been deliquency in the payment of the
inheritance tax? If so, should the additional interest claimed by the defendant
in his appeal be paid by the estate? Other points of incidental importance,
raised by the parties in their briefs, will be touched upon in the course of this
opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the
same. Section 1536 as amended, of the Administrative Code, imposes the tax
upon "every transmission by virtue of inheritance, devise, bequest, gift mortis
causa, or advance in anticipation of inheritance,devise, or bequest." The tax
therefore is upon transmission or the transfer or devolution of property of a
decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an
excise or privilege tax imposed on the right to succeed to, receive, or take
property by or under a will or the intestacy law, or deed, grant, or gift to
become operative at or after death. Acording to article 657 of the Civil Code,
"the rights to the succession of a person are transmitted from the moment of
his death." "In other words", said Arellano, C. J., ". . . the heirs succeed
immediately to all of the property of the deceased ancestor. The property
belongs to the heirs at the moment of the death of the ancestor as completely
as if the ancestor had executed and delivered to them a deed for the same
before his death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs.
Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs.
Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas
vs.Alcantara, 16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321;
Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38 Phil., 27; Osario
vs. Osario & Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil.,
317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of
Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article 657 of the
Civil Code is applicable to testate as well as intestate succession, it operates
only in so far as forced heirs are concerned. But the language of article 657 of
the Civil Code is broad and makes no distinction between different classes of
heirs. That article does not speak of forced heirs; it does not even use the
word "heir". It speaks of the rights of succession and the transmission thereof
from the moment of death. The provision of section 625 of the Code of Civil
Procedure regarding the authentication and probate of a will as a necessary
condition to effect transmission of property does not affect the general rule laid
down in article 657 of the Civil Code. The authentication of a will implies its
due execution but once probated and allowed the transmission is effective as
of the death of the testator in accordance with article 657 of the Civil Code.
Whatever may be the time when actual transmission of the inheritance takes
place, succession takes place in any event at the moment of the decedent's
death. The time when the heirs legally succeed to the inheritance may differ
from the time when the heirs actually receive such inheritance. "Poco
importa", says Manresa commenting on article 657 of the Civil Code, "que
desde el falleimiento del causante, hasta que el heredero o legatario entre en
posesion de los bienes de la herencia o del legado, transcurra mucho o poco
tiempo, pues la adquisicion ha de retrotraerse al momento de la muerte, y asi
lo ordena el articulo 989, que debe considerarse como complemento del
presente." (5 Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas
Hanley having died on May 27, 1922, the inheritance tax accrued as of the
date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does
not follow that the obligation to pay the tax arose as of the date. The time for
the payment on inheritance tax is clearly fixed by section 1544 of the Revised
Administrative Code as amended by Act No. 3031, in relation to section 1543
of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. —
The following shall not be taxed:
 (a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy
by the fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in
favor of another beneficiary, in accordance with the desire of
the predecessor.
In the last two cases, if the scale of taxation appropriate to the new
beneficiary is greater than that paid by the first, the former must pay
the difference.
SEC. 1544. When tax to be paid. — The tax fixed in this article shall
be paid:
(a) In the second and third cases of the next preceding
section, before entrance into possession of the property.
(b) In other cases, within the six months subsequent to the
death of the predecessor; but if judicial testamentary or
intestate proceedings shall be instituted prior to the expiration
of said period, the payment shall be made by the executor or
administrator before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed, interest
at the rate of twelve per centum per annum shall be added as part of
the tax; and to the tax and interest due and unpaid within ten days
after the date of notice and demand thereof by the collector, there
shall be further added a surcharge of twenty-five per centum.
A certified of all letters testamentary or of admisitration shall be
furnished the Collector of Internal Revenue by the Clerk of Court
within thirty days after their issuance.
It should be observed in passing that the word "trustee", appearing in
subsection (b) of section 1543, should read "fideicommissary" or "cestui que
trust". There was an obvious mistake in translation from the Spanish to the
English version.
The instant case does fall under subsection (a), but under subsection (b), of
section 1544 above-quoted, as there is here no fiduciary heirs, first heirs,
legatee or donee. Under the subsection, the tax should have been paid before
the delivery of the properties in question to P. J. M. Moore as trustee on
March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the
real properties are concerned, did not and could not legally pass to the
instituted heir, Matthew Hanley, until after the expiration of ten years from the
death of the testator on May 27, 1922 and, that the inheritance tax should be
based on the value of the estate in 1932, or ten years after the testator's
death. The plaintiff introduced evidence tending to show that in 1932 the real
properties in question had a reasonable value of only P5,787. This amount
added to the value of the personal property left by the deceased, which the
plaintiff admits is P1,465, would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose
inheritance taxes takes its being and if, upon the death of the decedent,
succession takes place and the right of the estate to tax vests instantly, the
tax should be measured by the vlaue of the estate as it stood at the time of the
decedent's death, regardless of any subsequent contingency value of any
subsequent increase or decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C.
L., p. 232; Blakemore and Bancroft, Inheritance Taxes, p. 137. See
also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed.,
969.) "The right of the state to an inheritance tax accrues at the moment of
death, and hence is ordinarily measured as to any beneficiary by the value at
that time of such property as passes to him. Subsequent appreciation or
depriciation is immaterial." (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of
and Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent
remainders, taxation is postponed until the estate vests in possession or the
contingency is settled. This rule was formerly followed in New York and has
been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and
Wisconsin. This rule, horever, is by no means entirely satisfactory either to the
estate or to those interested in the property (26 R. C. L., p. 231.). Realizing,
perhaps, the defects of its anterior system, we find upon examination of cases
and authorities that New York has varied and now requires the immediate
appraisal of the postponed estate at its clear market value and the payment
forthwith of the tax on its out of the corpus of the estate transferred. (In
re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div.,
458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519;
Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div.,
611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc.
App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California adheres to
this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a
transmission by inheritance is taxable at the time of the predecessor's death,
notwithstanding the postponement of the actual possession or enjoyment of
the estate by the beneficiary, and the tax measured by the value of the
property transmitted at that time regardless of its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross
in arriving at the net value of the estate on which the inheritance tax is to be
computed (sec. 1539, Revised Administrative Code). In the case at bar, the
defendant and the trial court allowed a deduction of only P480.81. This sum
represents the expenses and disbursements of the executors until March 10,
1924, among which were their fees and the proven debts of the deceased.
The plaintiff contends that the compensation and fees of the trustees, which
aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should
also be deducted under section 1539 of the Revised Administrative Code
which provides, in part, as follows: "In order to determine the net sum which
must bear the tax, when an inheritance is concerned, there shall be deducted,
in case of a resident, . . . the judicial expenses of the testamentary or intestate
proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services
(Barney vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does
not follow that the compensation due him may lawfully be deducted in arriving
at the net value of the estate subject to tax. There is no statute in the
Philippines which requires trustees' commissions to be deducted in
determining the net value of the estate subject to inheritance tax (61 C. J., p.
1705). Furthermore, though a testamentary trust has been created, it does not
appear that the testator intended that the duties of his executors and trustees
should be separated. (Ibid.; In re  Vanneck's Estate, 161 N. Y. Supp., 893; 175
App. Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary,
in paragraph 5 of his will, the testator expressed the desire that his real estate
be handled and managed by his executors until the expiration of the period of
ten years therein provided. Judicial expenses are expenses of administration
(61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N.
W., 878; 101 Minn., 485), it was said: ". . . The compensation of a trustee,
earned, not in the administration of the estate, but in the management thereof
for the benefit of the legatees or devises, does not come properly within the
class or reason for exempting administration expenses. . . . Service rendered
in that behalf have no reference to closing the estate for the purpose of a
distribution thereof to those entitled to it, and are not required or essential to
the perfection of the rights of the heirs or legatees. . . . Trusts . . . of the
character of that here before the court, are created for the the benefit of those
to whom the property ultimately passes, are of voluntary creation, and
intended for the preservation of the estate. No sound reason is given to
support the contention that such expenses should be taken into consideration
in fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate
of Thomas Hanley under the provisions of section 1544 of the Revised
Administrative Code, as amended by section 3 of Act No. 3606. But Act No.
3606 went into effect on January 1, 1930. It, therefore, was not the law in
force when the testator died on May 27, 1922. The law at the time was section
1544 above-mentioned, as amended by Act No. 3031, which took effect on
March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at
the time of the death of the decedent (26 R. C. L., p. 206; 4 Cooley on
Taxation, 4th ed., p. 3461). The taxpayer can not foresee and ought not to be
required to guess the outcome of pending measures. Of course, a tax statute
may be made retroactive in its operation. Liability for taxes under retroactive
legislation has been "one of the incidents of social life." (Seattle vs. Kelleher,
195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent that
a tax statute should operate retroactively should be perfectly clear. (Scwab vs.
Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257
U. S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247
U. S., 221.) "A statute should be considered as prospective in its operation,
whether it enacts, amends, or repeals an inheritance tax, unless the language
of the statute clearly demands or expresses that it shall have a retroactive
effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of
Regulations No. 65 of the Department of Finance makes section 3 of Act No.
3606, amending section 1544 of the Revised Administrative Code, applicable
to all estates the inheritance taxes due from which have not been paid, Act
No. 3606 itself contains no provisions indicating legislative intent to give it
retroactive effect. No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain
provisions of Act No. 3606 are more favorable to the taxpayer than those of
Act No. 3031, that said provisions are penal in nature and, therefore, should
operate retroactively in conformity with the provisions of article 22 of the
Revised Penal Code. This is the reason why he applied Act No. 3606 instead
of Act No. 3031. Indeed, under Act No. 3606, (1) the surcharge of 25 per cent
is based on the tax only, instead of on both the tax and the interest, as
provided for in Act No. 3031, and (2) the taxpayer is allowed twenty days from
notice and demand by rthe Collector of Internal Revenue within which to pay
the tax, instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an
offense committed against the state which, under the Constitution, the
Executive has the power to pardon. In common use, however, this sense has
been enlarged to include within the term "penal statutes" all status which
command or prohibit certain acts, and establish penalties for their violation,
and even those which, without expressly prohibiting certain acts, impose a
penalty upon their commission (59 C. J., p. 1110). Revenue laws, generally,
which impose taxes collected by the means ordinarily resorted to for the
collection of taxes are not classed as penal laws, although there are
authorities to the contrary. (See  Sutherland, Statutory Construction, 361;
Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice vs. U. S., 4
C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State
vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is
not applicable to the case at bar, and in the absence of clear legislative intent,
we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a
certain time and the tax may be paid within another given time. As stated by
this court, "the mere failure to pay one's tax does not render one delinqent
until and unless the entire period has eplased within which the taxpayer is
authorized by law to make such payment without being subjected to the
payment of penalties for fasilure to pay his taxes within the prescribed period."
(U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the
inheritance tax before the delivery of the decedent's property to the trustee.
Stated otherwise, the defendant contends that delivery to the trustee was
delivery to the cestui que trust, the beneficiery in this case, within the meaning
of the first paragraph of subsection (b) of section 1544 of the Revised
Administrative Code. This contention is well taken and is sustained. The
appointment of P. J. M. Moore as trustee was made by the trial court in
conformity with the wishes of the testator as expressed in his will. It is true that
the word "trust" is not mentioned or used in the will but the intention to create
one is clear. No particular or technical words are required to create a
testamentary trust (69 C. J., p. 711). The words "trust" and "trustee", though
apt for the purpose, are not necessary. In fact, the use of these two words is
not conclusive on the question that a trust is created (69 C. J., p. 714). "To
create a trust by will the testator must indicate in the will his intention so to do
by using language sufficient to separate the legal from the equitable estate,
and with sufficient certainty designate the beneficiaries, their interest in the
ttrust, the purpose or object of the trust, and the property or subject matter
thereof. Stated otherwise, to constitute a valid testamentary trust there must
be a concurrence of three circumstances: (1) Sufficient words to raise a trust;
(2) a definite subject; (3) a certain or ascertain object; statutes in some
jurisdictions expressly or in effect so providing." (69 C. J., pp. 705,706.) There
is no doubt that the testator intended to create a trust. He ordered in his will
that certain of his properties be kept together undisposed during a fixed
period, for a stated purpose. The probate court certainly exercised sound
judgment in appointment a trustee to carry into effect the provisions of the will
(see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate
vested in him (sec. 582 in relation to sec. 590, Code of Civil Procedure). The
mere fact that the estate of the deceased was placed in trust did not remove it
from the operation of our inheritance tax laws or exempt it from the payment of
the inheritance tax. The corresponding inheritance tax should have been paid
on or before March 10, 1924, to escape the penalties of the laws. This is so
for the reason already stated that the delivery of the estate to the trustee
was in esse delivery of the same estate to the cestui que trust, the beneficiary
in this case. A trustee is but an instrument or agent for the cestui que
trust  (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed.,
1086). When Moore accepted the trust and took possesson of the trust estate
he thereby admitted that the estate belonged not to him but to his cestui que
trust  (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did
not acquire any beneficial interest in the estate. He took such legal estate only
as the proper execution of the trust required (65 C. J., p. 528) and, his estate
ceased upon the fulfillment of the testator's wishes. The estate then vested
absolutely in the beneficiary (65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we have
reached. Were we to hold that the payment of the tax could be postponed or
delayed by the creation of a trust of the type at hand, the result would be
plainly disastrous. Testators may provide, as Thomas Hanley has provided,
that their estates be not delivered to their beneficiaries until after the lapse of a
certain period of time. In the case at bar, the period is ten years. In other
cases, the trust may last for fifty years, or for a longer period which does not
offend the rule against petuities. The collection of the tax would then be left to
the will of a private individual. The mere suggestion of this result is a sufficient
warning against the accpetance of the essential to the very exeistence of
government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022;
Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs.
Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co. vs.
Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles
River Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation
to pay taxes rests not upon the privileges enjoyed by, or the protection
afforded to, a citizen by the government but upon the necessity of money for
the support of the state (Dobbins vs. Erie Country, supra). For this reason, no
one is allowed to object to or resist the payment of taxes solely because no
personal benefit to him can be pointed out. (Thomas vs. Gay, 169 U. S., 264;
18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not enlarge, by
construction, the government's power of taxation (Bromley vs. McCaughn, 280
U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place
upon tax laws so loose a construction as to permit evasions on merely fanciful
and insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas. No.
16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in
Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros.,
Wolf & Sons vs. McCoy, 21 Phil., 300; Muñoz & Co. vs. Hord, 12 Phil., 624;
Hongkong & Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon
Stevedoring Co. vs. Trinidad, 43 Phil., 803.) When proper, a tax statute should
be construed to avoid the possibilities of tax evasion. Construed this way, the
statute, without resulting in injustice to the taxpayer, becomes fair to the
government.
That taxes must be collected promptly is a policy deeply intrenched in our tax
system. Thus, no court is allowed to grant injunction to restrain the collection
of any internal revenue tax ( sec. 1578, Revised Administrative Code;
Sarasola vs. Trinidad, 40 Phil., 252). In the case of Lim Co Chui vs. Posadas
(47 Phil., 461), this court had occassion to demonstrate trenchment
adherence to this policy of the law. It held that "the fact that on account of riots
directed against the Chinese on October 18, 19, and 20, 1924, they were
prevented from praying their internal revenue taxes on time and by mutual
agreement closed their homes and stores and remained therein, does not
authorize the Collector of Internal Revenue to extend the time prescribed for
the payment of the taxes or to accept them without the additional penalty of
twenty five per cent." (Syllabus, No. 3.)
". . . It is of the utmost importance," said the Supreme Court of the United
States, ". . . that the modes adopted to enforce the taxes levied should be
interfered with as little as possible. Any delay in the proceedings of the
officers, upon whom the duty is developed of collecting the taxes, may
derange the operations of government, and thereby, cause serious detriment
to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill
and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in the
payment of inheritance tax and, therefore, liable for the payment of interest
and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when
Moore became trustee. The interest due should be computed from that date
and it is error on the part of the defendant to compute it one month later. The
provisions cases is mandatory (see and cf. Lim Co Chui vs. Posadas, supra),
and neither the Collector of Internal Revenuen or this court may remit or
decrease such interest, no matter how heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice
and demand thereof by the Collector of Internal Revenue, a surcharge of
twenty-five per centum should be added (sec. 1544, subsec. (b), par. 2,
Revised Administrative Code). Demand was made by the Deputy Collector of
Internal Revenue upon Moore in a communiction dated October 16, 1931
(Exhibit 29). The date fixed for the payment of the tax and interest was
November 30, 1931. November 30 being an official holiday, the tenth day fell
on December 1, 1931. As the tax and interest due were not paid on that date,
the estate became liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth
error assigned by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due
from the estate of Thomas Hanley inaccordance with the conclusions we have
reached.
At the time of his death, the deceased left real properties valued at P27,920
and personal properties worth P1,465, or a total of P29,385. Deducting from
this amount the sum of P480.81, representing allowable deductions under
secftion 1539 of the Revised Administrative Code, we have P28,904.19 as the
net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised
Administrative Code, should be imposed at the rate of one per centum upon
the first ten thousand pesos and two per centum upon the amount by which
the share exceed thirty thousand pesos, plus an additional two hundred per
centum. One per centum of ten thousand pesos is P100. Two per centum of
P18,904.19 is P378.08. Adding to these two sums an additional two hundred
per centum, or P965.16, we have as primary tax, correctly computed by the
defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under
section 1544 of the Revised Administrative Code. First should be added
P1,465.31 which stands for interest at the rate of twelve per centum per
annum from March 10, 1924, the date of delinquency, to September 15, 1932,
the date of payment under protest, a period covering 8 years, 6 months and 5
days. To the tax and interest thus computed should be added the sum of
P724.88, representing a surhcarge of 25 per cent on both the tax and interest,
and also P10, the compromise sum fixed by the defendant (Exh. 29), giving a
grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of
P1,581.69 is legally due from the estate. This last sum is P390.42 more than
the amount demanded by the defendant in his counterclaim. But, as we
cannot give the defendant more than what he claims, we must hold that the
plaintiff is liable only in the sum of P1,191.27 the amount stated in the
counterclaim.
The judgment of the lower court is accordingly modified, with costs against the
plaintiff in both instances. So ordered.
G.R. No. 113725               June 29, 2000
JOHNNY S. RABADILLA,1 petitioner,
vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals,3 dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision
of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the
defendants-appellees (including herein petitioner),  as  heirs of Dr. Jorge
Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and
interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza,
Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S.
Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel
of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil,
which was duly probated and admitted in Special Proceedings No. 4046
before the then Court of First Instance of Negros Occidental, contained the
following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), which is registered in my
name according to the records of the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned
property and the rights which I shall set forth hereinbelow, shall be
inherited and acknowledged by the children and spouse of Jorge
Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die and
Jorge Rabadilla shall have already received the ownership of the said Lot No.
1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-
4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of
the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies,
every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic)
piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the
said Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of
the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10492), shall have the obligation to still give yearly, the sugar as specified in
the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza
on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later sell,
lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also
the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of
sugar to Maria Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of
Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot
No. 1392 from my heir and the latter's heirs, and shall turn it over to my near
desendants, (sic) and the latter shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further
command in this my addition (Codicil) that my heir and his heirs of this Lot No.
1392, that they will obey and follow that should they decide to sell, lease,
mortgage, they cannot negotiate with others than my near descendants and
my sister."4
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased,
Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued
in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought
a complaint, docketed as Civil Case No. 5588, before Branch 52 of the
Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr.
Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint
alleged that the defendant-heirs violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and
the Republic Planters Bank in disregard of the testatrix's specific
instruction to sell, lease, or mortgage only to the near descendants
and sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one
hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from
sugar crop years 1985 up to the filing of the complaint as mandated
by the Codicil, despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil
which provided that in case of the sale, lease, or mortgage of the
property, the buyer, lessee, or mortgagee shall likewise have the
obligation to deliver 100 piculs of sugar per crop year to herein private
respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs
to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza,
the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge
Rabadilla, and the issuance of a new certificate of title in the names of the
surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on
March 28, 1990 the Order of Default was lifted, with respect to defendant
Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan
Azurin, son-in-law of the herein petitioner who was lessee of the property and
acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement
and entered into a Memorandum of Agreement on the obligation to deliver one
hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT
No. 44489 will be delivered not later than January of 1989, more specifically,
to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our
names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of
each sugar crop year, in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same manner will
compliance of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88,
will be complied in cash equivalent of the number of piculs as mentioned
therein and which is as herein agreed upon, taking into consideration the
composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered
cash installment, payable on or before the end of December of every sugar
crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1990-91;
and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 1991-92."5
However, there was no compliance with the aforesaid Memorandum of
Agreement except for a partial delivery of 50.80 piculs of sugar corresponding
to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the
action is prematurely filed as no cause of action against the defendants has as
yet arose in favor of plaintiff. While there maybe the non-performance of the
command as mandated exaction from them simply because they are the
children of Jorge Rabadilla, the title holder/owner of the lot in question, does
not warrant the filing of the present complaint. The remedy at bar must fall.
Incidentally, being in the category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to establish the heirs of
Jorge Rabadilla and in order to give full meaning and semblance to her claim
under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed is
DISMISSED without prejudice.
SO ORDERED."6
On appeal by plaintiff, the First Division of the Court of Appeals reversed the
decision of the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs
of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-
appellant; defendants-appellee's admitted non-compliance with said obligation
since 1985; and, the punitive consequences enjoined by both the codicil and
the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of
Aleja Belleza in case of such non-compliance, this Court deems it proper to
order the reconveyance of title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must
institute separate proceedings to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's
legal heirs in order to enforce her right, reserved to her by the codicil, to
receive her legacy of 100 piculs of sugar per year out of the produce of Lot
No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED."7
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner
found his way to this Court via the present petition, contending that the Court
of Appeals erred in ordering the reversion of Lot 1392 to the estate of the
testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling
that the testamentary institution of Dr. Jorge Rabadilla is a modal institution
within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in
accordance with Article 882 of the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the absence or prematurity of the
cause of action. Petitioner maintains that Article 882 does not find application
as there was no modal institution and the testatrix intended a mere simple
substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted
by the testatrix's "near descendants" should the obligation to deliver the fruits
to herein private respondent be not complied with. And since the testatrix died
single and without issue, there can be no valid substitution and such
testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no valid substitution for the
reason that the substituted heirs are not definite, as the substituted heirs are
merely referred to as "near descendants" without a definite identity or
reference as to who are the "near descendants" and therefore, under Articles
8438 and 8459 of the New Civil Code, the substitution should be deemed as not
written.
The contentions of petitioner are untenable. Contrary to his supposition that
the Court of Appeals deviated from the issue posed before it, which was the
propriety of the dismissal of the complaint on the ground of prematurity of
cause of action, there was no such deviation. The Court of Appeals found that
the private respondent had a cause of action against the petitioner. The
disquisition made on modal institution was, precisely, to stress that the private
respondent had a legally demandable right against the petitioner pursuant to
subject Codicil; on which issue the Court of Appeals ruled in accordance with
law.
It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent10 and compulsory heirs
are called to succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the widow or widower,
are compulsory heirs.11 Thus, the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the
latter by operation of law, without need of further proceedings, and the
successional rights were transmitted to them from the moment of death of the
decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property,
rights and obligations of a person, not extinguished by his death.
Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
Codicil were transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the Codicil on the deceased
Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon
his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that the usufruct thereof would be delivered
to the herein private respondent every year. Upon the death of Dr. Jorge
Rabadilla, his compulsory heirs succeeded to his rights and title over the said
property, and they also assumed his (decedent's) obligation to deliver the
fruits of the lot involved to herein private respondent. Such obligation of the
instituted heir reciprocally corresponds to the right of private respondent over
the usufruct, the fulfillment or performance of which is now being demanded
by the latter through the institution of the case at bar. Therefore, private
respondent has a cause of action against petitioner and the trial court erred in
dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near
descendants should there be noncompliance with the obligation to deliver the
piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take
the place of the heir or heirs first instituted. Under substitutions in general, the
testator may either (1) provide for the designation of another heir to whom the
property shall pass in case the original heir should die before him/her,
renounce the inheritance or be incapacitated to inherit, as in a simple
substitution,12 or (2) leave his/her property to one person with the express
charge that it be transmitted subsequently to another or others, as in a
fideicommissary substitution.13 The Codicil sued upon contemplates neither of
the two.
In simple substitutions, the second heir takes the inheritance in default of the
first heir by reason of incapacity, predecease or renunciation.14 In the case
under consideration, the provisions of subject Codicil do not provide that
should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the
conditions imposed in the Codicil, the property referred to shall be seized and
turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point,
petitioner is correct. In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later to the
second heir.15 In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation is
with the near descendants or the sister of the testatrix. Thus, a very important
element of a fideicommissary substitution is lacking; the obligation clearly
imposing upon the first heir the preservation of the property and its
transmission to the second heir. "Without this obligation to preserve clearly
imposed by the testator in his will, there is no fideicommissary
substitution."16 Also, the near descendants' right to inherit from the testatrix is
not definite. The property will only pass to them should Dr. Jorge Rabadilla or
his heirs not fulfill the obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary substitution is also missing
here. Under Article 863, the second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree from the first heir or
the fiduciary. A fideicommissary substitution is therefore, void if the first heir is
not related by first degree to the second heir.17 In the case under scrutiny, the
near descendants are not at all related to the instituted heir, Dr. Jorge
Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the application of the
property left by the testator, or the charge imposed on him, shall not be
considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided that
the instituted heir or his heirs give security for compliance with the wishes of
the testator and for the return of anything he or they may receive, together
with its fruits and interests, if he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the testator,
it shall be complied with in a manner most analogous to and in conformity with
his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is
known in the law of succession as an institucion sub modo  or a modal
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the testator, or
(3) the charge imposed by the testator upon the heir.18 A "mode" imposes an
obligation upon the heir or legatee but it does not affect the efficacy of his
rights to the succession.19 On the other hand, in a conditional testamentary
disposition, the condition must happen or be fulfilled in order for the heir to be
entitled to succeed the testator. The condition suspends but does not obligate;
and the mode obligates but does not suspend.20 To some extent, it is similar to
a resolutory condition.21
near descendants. The non-performance of the said obligation is thus with the
sanction of seizure of the property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed by the testatrix, not
only on the instituted heir but also on his successors-in-interest, the sanction
imposed by the testatrix in case of non-fulfillment of said obligation should
equally apply to the instituted heir and his successors-in-interest.

From the provisions of the Codicil litigated upon, it can be gleaned unerringly
that the testatrix intended that subject property be inherited by Dr. Jorge
Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation
on the said instituted heir and his successors-in-interest to deliver one
hundred piculs of sugar to the herein private respondent, Marlena Coscolluela
Belleza, during the lifetime of the latter. However, the testatrix did not make
Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a
devisee, dependent on the performance of the said obligation. It is clear,
though, that should the obligation be not complied with, the property shall be
turned over to the testatrix's near descendants. The manner of institution of
Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because
it imposes a charge upon the instituted heir without, however, affecting the
efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an
obligation imposed upon the heir should not be considered a condition unless
it clearly appears from the Will itself that such was the intention of the testator.
In case of doubt, the institution should be considered as modal and not
conditional.22
Neither is there tenability in the other contention of petitioner that the private
respondent has only a right of usufruct but not the right to seize the property
itself from the instituted heir because the right to seize was expressly limited
to violations by the buyer, lessee or mortgagee.
Similarly unsustainable is petitioner's submission that by virtue of the amicable
settlement, the said obligation imposed by the Codicil has been assumed by
the lessee, and whatever obligation petitioner had become the obligation of
the lessee; that petitioner is deemed to have made a substantial and
constructive compliance of his obligation through the consummated settlement
between the lessee and the private respondent, and having consummated a
settlement with the petitioner, the recourse of the private respondent is the
fulfillment of the obligation under the amicable settlement and not the seizure
of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by
which a person disposes of his property, to take effect after his death.25 Since
the Will expresses the manner in which a person intends how his properties
be disposed, the wishes and desires of the testator must be strictly followed.
Thus, a Will cannot be the subject of a compromise agreement which would
thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the
Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555
AFFIRMED. No pronouncement as to costs

In the interpretation of Wills, when an uncertainty arises on the face of the

Will, as to the application of any of its 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.23 Such construction as will sustain
and uphold the Will in all its parts must be adopted.24

Subject Codicil provides that the instituted heir is under obligation to deliver
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such
obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and
their buyer, lessee, or mortgagee should they sell, lease, mortgage or
otherwise negotiate the property involved. The Codicil further provides that in
the event that the obligation to deliver the sugar is not respected, Marlena
Belleza Coscuella shall seize the property and turn it over to the testatrix's
G.R. No. 89783 February 19, 1992
MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. LOCSIN, AUREA B.
LOCSIN, MATILDE L. CORDERO, SALVADOR B. LOCSIN and MANUEL V.
DEL ROSARIO, petitioners,
vs.
THE HON. COURT OF APPEALS, JOSE JAUCIAN, FLORENTINO
JAUCIAN, MERCEDES JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA J.
BORJA, HEIRS OF EDUARDO JAUCIAN and HEIRS OF VICENTE
JAUCIAN, respondents.
Aytona Law Office and Siquia Law Offices for petitioners.
Mabella, Sangil & Associates for private respondents.
NARVASA, C.J.:
Reversal of the decision of the Court of Appeals in CA-G.R. No. CV-11186 —
affirming with modification the judgment of the Regional Trial Court of Albay in
favor of the plaintiffs in Civil Case No. 7152 entitled "Jose Jaucian, et al. v.
Mariano B. Locsin, et al.," an action for recovery of real property with
damages — is sought. in these proceedings initiated by petition for review
on  certiorari in accordance with Rule 45 of the Rules of Court.
The petition was initially denied due course and dismissed by this Court. It
was however reinstated upon a second motion for reconsideration filed by the
petitioners, and the respondents were required to comment thereon. The
petition was thereafter given due course and the parties were directed to
submit their memorandums. These, together with the evidence, having been
carefully considered, the Court now decides the case.
First, the facts as the Court sees them in light of the evidence on record:
The late Getulio Locsin had three children named Mariano, Julian and
Magdalena, all surnamed Locsin. He owned extensive residential and
agricultural properties in the provinces of Albay and Sorsogon. After his death,
his estate was divided among his three (3) children as follows:
(a) the coconut lands of some 700 hectares in Bual, Pilar, Sorsogon, were
adjudicated to his daughter, Magdalena Locsin;
(b) 106 hectares of coconut lands were given to Julian Locsin, father of the
petitioners Julian, Mariano, Jose, Salvador, Matilde, and Aurea, all surnamed
Locsin;
(c) more than forty (40) hectares of coconut lands in Bogtong, eighteen (18)
hectares of riceland in Daraga, and the residential lots in Daraga, Albay and in
Legazpi City went to his son Mariano, which Mariano brought into his marriage
to Catalina Jaucian in 1908. Catalina, for her part, brought into the marriage
untitled properties which she had inherited from her parents, Balbino Jaucian
and Simona Anson. These were augmented by other properties acquired by
the spouses in the course of their union,1 which however was not blessed with
children.
Eventually, the properties of Mariano and Catalina were brought under the
Torrens System. Those that Mariano inherited from his father, Getulio Locsin,
were surveyed cadastrally and registered in the name of "Mariano Locsin,
married to Catalina Jaucian.'' 2
Mariano Locsin executed a Last Will and Testament instituting his wife,
Catalina, as the sole and universal heir of all his properties. 3 The will was
drawn up by his wife's nephew and trusted legal adviser, Attorney Salvador
Lorayes. Attorney Lorayes disclosed that the spouses being childless, they
had agreed that their properties, after both of them shall have died should
revert to their respective sides of the family, i.e., Mariano's properties would
go to his "Locsin relatives" (i.e., brothers and sisters or nephews and nieces),
and those of Catalina to her "Jaucian relatives." 4
Don Mariano Locsin died of cancer on September 14, 1948 after a lingering
illness. In due time, his will was probated in Special Proceedings No. 138, CFI
of Albay without any opposition from both sides of the family. As directed in
his will, Doña Catalina was appointed executrix of his estate. Her lawyer in the
probate proceeding was Attorney Lorayes. In the inventory of her husband's
estate 5 which she submitted to the probate court for approval, 6 Catalina
declared that "all items mentioned from Nos. 1 to 33 are the private properties
of the deceased and form part of his capital at the time of the marriage with
the surviving spouse, while items Nos. 34 to 42 are conjugal." 7
Among her own and Don Mariano's relatives, Doña Catalina was closest to
her nephew, Attorney Salvador Lorayes, her nieces, Elena Jaucian, Maria
Lorayes-Cornelio and Maria Olbes-Velasco, and the husbands of the last two:
Hostilio Cornelio and Fernando Velasco. 8 Her trust in Hostilio Cornelio was
such that she made him custodian of all the titles of her properties; and before
she disposed of any of them, she unfailingly consulted her lawyer-nephew,
Attorney Salvador Lorayes. It was Atty. Lorayes who prepared the legal
documents and, more often than not, the witnesses to the transactions were
her niece Elena Jaucian, Maria Lorayes-Cornelio, Maria Olbes-Velasco, or
their husbands. Her niece, Elena Jaucian, was her life-long companion in her
house.
Don Mariano relied on Doña Catalina to carry out the terms of their compact,
hence, nine (9) years after his death, as if in obedience to his voice from the
grave, and fully cognizant that she was also advancing in years, Doña
Catalina began transferring, by sale, donation or assignment, Don Mariano's
as well as her own, properties to their respective nephews and nieces. She
made the following sales and donation of properties which she had received
from her husband's estate, to his Locsin nephews and nieces:
EXHIBIT DATE PARTICULARS AREA/SQ.M.  PRICE WITNESSES
6 July 15, 1974 Deed of Absolute Sale in 1,237 P 5,720 - ditto -
favor of Aurea B. Locsin
7 July 15, 1974 Deed of Absolute Sale in 1,404 P 4,050 - ditto -
favor of Aurea B. Locsin
15 Nov. 26, 1975 Deed of Sale in favor of 261 P 4,930 - ditto -
Aurea Locsin
16 Oct. 17, 1975 Deed of Sale in favor of 533 P 2,000 Delfina Anson
Aurea Locsin M. Acabado
17 Nov. 26, 1975 Deed of Sale in favor of 373 P 1,000 Leonor Satuito
Aurea Locsin Mariano B. Locsin

23 Jan. 26, 1957 Deed of Absolute Sale in 962 P 481 19 Sept. 1, 1975 Conditional Donation in 1,130 P 3,000 - ditto -
favor of Mariano Locsin favor of Mariano Locsin

1-JRL Apr. 7, 1966 Deed of Sale in favor of 430,203 P 20,000 1-MVRJ Dec. 29, 1972 Deed of Reconveyance 1,5110.66 P 1,000 Delfina
Jose R. Locsin Anson
in favor of Manuel V. del (Lot 2155) Antonio Illegible
1-JJL Mar. 22, 1967 Deed of Sale in favor of 5,000 P 1,000 Hostilio Cornello Rosario whose maternal
Julian Locsin (Lot 2020) Helen M. Jaucian grandfather was Getulio
Locsin
1 Nov. 29, 1974 Deed of Donation in 26,509
favor Aurea Locsin, 2-MVRJ June 30, 1973 Deed of Reconveyance 319.34 P 500 Antonio Illegible
Matilde L. Cordero in favor of Manuel V. del (Lot 2155) Salvador Nical
and Salvador Locsin Rosario but the rentals
from bigger portion of
2 Feb. 4, 1975 Deed of Donation in 34,045 Lot 2155 leased to Filoil
favor Aurea Locsin, Refinery were assigned to
Matilde L. Cordero Maria Jaucian Lorayes
and Salvador Locsin Cornelio

3 Sept. 9, 1975 Deed of Donation in (Lot 2059) Of her own properties, Doña Catalina conveyed the following to her own
favor Aurea Locsin, nephews and nieces and others:
Matilde L. Cordero
and Salvador Locsin EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE

4 July 15, 1974 Deed of Absolute Sale in 1,424 Hostilio Cornelio 2-JJL July 16, 1964 Deed of Sale in favor 5,000 P 1,000
favor of Aurea B. Locsin Fernando Velasco Vicente Jaucian (lot 2020)
(6,825 sqm. when
5 July 15, 1974 Deed of Absolute Sale in 1,456 P 5,750 Hostilio Cornelio resurveyed)
favor of Aurea B. Locsin Elena Jaucian
24 Feb. 12, 1973 Deed of Absolute Sale 100 P 1,000
in favor of Francisco M.
Maquiniana
26 July 15, 1973 Deed of Absolute Sale in 130 P 1,300
favor of Francisco
Maquiniana
27 May 3, 1973 Deed of Absolute Sale in 100 P 1,000
favor of Ireneo Mamia
28 May 3, 1973 Deed of Absolute Sale in 75 P 750
favor of Zenaida Buiza
29 May 3, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Felisa Morjella
30 Apr. 3, 1973 Deed of Absolute Sale in 31 P 1,000
favor of Inocentes Motocinos
31 Feb. 12, 1973 Deed of Absolute Sale in 150 P 1,500
favor of Casimiro Mondevil
32 Mar. 1, 1973 Deed of Absolute Sale in 112 P 1,200
favor of Juan Saballa
25 Dec. 28, 1973 Deed of Absolute Sale in 250 P 2,500
of Rogelio Marticio
Doña Catalina died on July 6, 1977.
Four years before her death, she had made a will on October 22, 1973
affirming and ratifying the transfers she had made during her lifetime in favor
of her husband's, and her own, relatives. After the reading of her will, all the
relatives agreed that there was no need to submit it to the court for probate
because the properties devised to them under the will had already been
conveyed to them by the deceased when she was still alive, except some
legacies which the executor of her will or estate, Attorney Salvador Lorayes,
proceeded to distribute.
In 1989, or six (6) years after Doña Catalina's demise, some of her Jaucian
nephews and nieces who had already received their legacies and hereditary
shares from her estate, filed action in the Regional Trial Court of Legaspi City
(Branch VIII, Civil Case No. 7152) to recover the properties which she had
conveyed to the Locsins during her lifetime, alleging that the conveyances
were inofficious, without consideration, and intended solely to circumvent the
laws on succession. Those who were closest to Doña Catalina did not join the
action.
After the trial, judgment was rendered on July 8, l985 in favor of the plaintiffs
(Jaucian), and against the Locsin defendants, the dispositive part of which
reads:
WHEREFORE, this Court renders judgment for the plaintiffs
and against the defendants:
(1) declaring the, plaintiffs, except the heirs of Josefina J.
Borja and Eduardo Jaucian, who withdrew, the rightful heirs
and entitled to the entire estate, in equal portions, of Catalina
Jaucian Vda. de Locsin, being the nearest collateral heirs by
right of representation of Juan and Gregorio, both surnamed
Jaucian, and full-blood brothers of Catalina;
(2) declaring the deeds of sale, donations, reconveyance and
exchange and all other instruments conveying any part of the
estate of Catalina J. Vda. de Locsin including, but not limited
to those in the inventory of known properties (Annex B of the
complaint) as null and void ab-initio;
(3) ordering the Register of Deeds of Albay and/or Legazpi
City to cancel all certificates of title and other transfers of the
real properties, subject of this case, in the name of
defendants, and derivatives therefrom, and issue new ones to
the plaintiffs;
(4) ordering the defendants, jointly and severally, to reconvey
ownership and possession of all such properties to the
plaintiffs, together with all muniments of title properly
endorsed and delivered, and all the fruits and incomes
received by the defendants from the estate of Catalina, with
legal interest from the filing of this action; and where
reconveyance and delivery cannot be effected for reasons
that might have intervened and prevent the same, defendants
shall pay for the value of such properties, fruits and incomes
received by them, also with legal interest from the filing, of
this case
 (5) ordering each of the defendants to pay the plaintiffs the
amount of P30,000.00 as exemplary damages; and the
further sum of P20,000.00 each as moral damages; and
(6) ordering the defendants to pay the plaintiffs attorney's fees
and litigation expenses, in the amount of P30,000.00 without
prejudice to any contract between plaintiffs and counsel.
Costs against the defendants.9
The Locsins appealed to the Court of Appeals (CA-G.R. No. CV-11186) which
rendered its now appealed judgment on March 14, 1989, affirming the trial
court's decision.
The petition has merit and should be granted.
The trial court and the Court of Appeals erred in declaring the private
respondents, nephews and nieces of Doña Catalina J. Vda. de Locsin, entitled
to inherit the properties which she had already disposed of more than ten (10)
years before her death. For those properties did not form part of her hereditary
estate, i.e., "the property and transmissible rights and obligations existing at
the time of (the decedent's) death and those which have accrued thereto since
the opening of the succession." 10 The rights to a person's succession are
transmitted from the moment of his death, and do not vest in his heirs until
such time.11  Property which Doña Catalina had transferred or conveyed to
other persons during her lifetime no longer formed part of her estate at the
time of her death to which her heirs may lay claim. Had she died intestate,
only the property that remained in her estate at the time of her death devolved
to her legal heirs; and even if those transfers were, one and all, treated as
donations, the right arising under certain circumstances to impugn and compel
the reduction or revocation of a decedent's gifts inter vivos does not inure to
the respondents since neither they nor the donees are compulsory (or forced)
heirs. 12
There is thus no basis for assuming an intention on the part of Doña Catalina,
in transferring the properties she had received from her late husband to his
nephews and nieces, an intent to circumvent the law in violation of the private
respondents' rights to her succession. Said respondents are not her
compulsory heirs, and it is not pretended that she had any such, hence there
were no legitimes that could conceivably be impaired by any transfer of her
property during her lifetime. All that the respondents had was
an expectancy that in nowise restricted her freedom to dispose of even her
entire estate subject only to the limitation set forth in Art. 750, Civil Code
which, even if it were breached, the respondents may not invoke:
Art. 750. The donation may comprehend all the present
property of the donor or part thereof, provided he reserves, in
full ownership or in usufruct, sufficient means for the support
of himself, and of all relatives who, at the time of the
acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the
donation shall be reduced on petition of any person affected.
(634a)
The lower court capitalized on the fact that Doña Catalina was already 90
years old when she died on July 6, 1977. It insinuated that because of her
advanced years she may have been imposed upon, or unduly influenced and
morally pressured by her husband's nephews and nieces (the petitioners) to
transfer to them the properties which she had inherited from Don Mariano's
estate. The records do not support that conjecture.
For as early as 1957, or twenty-eight (28) years before her death, Doña
Catalina had already begun transferring to her Locsin nephews and nieces the
properties which she received from Don Mariano. She sold a 962-sq.m. lot on
January 26, 1957 to his nephew and namesake Mariano Locsin II. 13 On April
7, 1966, or 19 years before she passed away, she also sold a 43 hectare land
to another Locsin nephew, Jose R. Locsin.14 The next year, or on March 22,
1967, she sold a 5,000-sq.m. portion of Lot 2020 to Julian Locsin.15
On March 27, 1967, Lot 2020 16 was partitioned by and among Doña Catalina,
Julian Locsin, Vicente Jaucian and Agapito Lorete.17 At least Vicente Jaucian,
among the other respondents in this case, is estopped from assailing the
genuineness and due execution of the sale of portions of Lot 2020 to himself,
Julian Locsin, and Agapito Lorete, and the partition agreement that he
(Vicente) concluded with the other co-owners of Lot 2020.
Among Doña, Catalina's last transactions before she died in 1977 were the
sales of property which she made in favor of Aurea Locsin and Mariano Locsin
in 1975.18
There is not the slightest suggestion in the record that Doña Catalina was
mentally incompetent when she made those dispositions. Indeed, how can
any such suggestion be made in light of the fact that even as she was
transferring properties to the Locsins, she was also contemporaneously
disposing of her other properties in favor of the Jaucians? She sold to her
nephew, Vicente Jaucian, on July 16, 1964 (21 years before her death) one-
half (or 5,000 sq.m.) of Lot 2020. Three years later, or on March 22, 1967, she
sold another 5000 sq.m. of the same lot to Julian Locsin.19
From 1972 to 1973 she made several other transfers of her properties to her
relatives and other persons, namely: Francisco Maquiniana, Ireneo Mamia,
Zenaida Buiza, Feliza Morjella, Inocentes Motocinos, Casimiro Mondevil, Juan
Saballa and Rogelio Marticio. 20 None of those transactions was impugned by
the private respondents.
In 1975, or two years before her death, Doña Catalina sold some lots not only
to Don Mariano's niece, Aurea Locsin, and his nephew, Mariano Locsin
II, 21 but also to her niece, Mercedes Jaucian Arboleda. 22 If she was
competent to make that conveyance to Mercedes, how can there be any
doubt that she was equally competent to transfer her other pieces of property
to Aurea and Mariano II?
The trial court's belief that Don Mariano Locsin bequeathed his entire estate to
his wife, from a "consciousness of its real origin" which carries the implication
that said estate consisted of properties which his wife had inherited from her
parents, flies in the teeth of Doña Catalina's admission in her inventory of that
estate, that "items 1 to 33 are the private properties of the deceased (Don
Mariano) and forms (sic) part of his capital at the time of the marriage with the
surviving spouse, while items 34 to 42 are conjugal properties, acquired
during the marriage." She would have known better than anyone else whether
the listing included any of her paraphernal property so it is safe to assume that
none was in fact included. The inventory was signed by her under oath, and
was approved by the probate court in Special Proceeding No. 138 of the Court
of First Instance of Albay. It was prepared with the assistance of her own
nephew and counsel, Atty. Salvador Lorayes, who surely would not have
prepared a false inventory that would have been prejudicial to his aunt's
interest and to his own, since he stood to inherit from her eventually.
This Court finds no reason to disbelieve Attorney Lorayes' testimony that
before Don Mariano died, he and his wife (Doña Catalina), being childless,
had agreed that their respective properties should eventually revert to their
respective lineal relatives. As the trusted legal adviser of the spouses and a
full-blood nephew of Doña Catalina, he would not have spun a tale out of thin
air that would also prejudice his own interest.
Little significance, it seems, has been attached to the fact that among Doña
Catalina's nephews and nieces, those closest to her: (a) her lawyer-nephew
Attorney Salvador Lorayes; (b) her niece and companion Elena Jaucian: (c)
her nieces Maria Olbes-Velasco and Maria Lorayes-Cornelio and their
respective husbands, Fernando Velasco and Hostilio Cornelio, did not join the
suit to annul and undo the dispositions of property which she made in favor of
the Locsins, although it would have been to their advantage to do so. Their
desistance persuasively demonstrates that Doña Catalina acted as a
completely free agent when she made the conveyances in favor of the
petitioners. In fact, considering their closeness to Doña Catalina it would have
been well-nigh impossible for the petitioners to employ "fraud, undue
pressure, and subtle manipulations" on her to make her sell or donate her
properties to them. Doña Catalina's niece, Elena Jaucian, daughter of her
brother, Eduardo Jaucian, lived with her in her house. Her nephew-in-law,
Hostilio Cornelio, was the custodian of the titles of her properties. The sales
and donations which she signed in favor of the petitioners were prepared by
her trusted legal adviser and nephew, Attorney Salvador Lorayes. The (1)
deed of donation dated November 19,
197423 in favor of Aurea Locsin, (2) another deed of donation dated February
4, 1975 24 in favor of Matilde Cordero, and (3) still another deed dated
September 9, 1975 25 in favor of Salvador Lorayes, were all witnessed by
Hostilio Cornelio (who is married to Doña Catalina's niece, Maria Lorayes) and
Fernando Velasco who is married to another niece, Maria Olbes.26 The sales
which she made in favor of Aurea Locsin on July 15, 1974 27 were witnessed
by Hostilio Cornelio and Elena Jaucian. Given those circumstances, said
transactions could not have been anything but free and voluntary acts on her
part.
Apart from the foregoing considerations, the trial court and the Court of
Appeals erred in not dismissing this action for annulment and reconveyance
on the ground of prescription. Commenced decades after the transactions had
been consummated, and six (6) years after Doña Catalina's death, it
prescribed four (4) years after the subject transactions were recorded in the
Registry of Property,28 whether considered an action based on fraud, or one to
redress an injury to the rights of the plaintiffs. The private respondents may
not feign ignorance of said transactions because the registration of the deeds
was constructive notice thereof to them and the whole world.29
WHEREFORE, the petition for review is granted. The decision dated March
14, 1989 of the Court of Appeals in CA-G.R. CV No. 11186 is REVERSED
and SET ASIDE. The private respondents' complaint for annulment of
contracts and reconveyance of properties in Civil Case No. 7152 of the
Regional Trial Court, Branch VIII of Legazpi City, is DISMISSED, with costs
against the private respondents, plaintiffs therein.
SO ORDERED.
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. 15 hence 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.
Reyes34 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, 46 and 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,49 Rodriguez
vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of Toray52 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,61 Sabado 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.
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 EVANGELISTA (Sgd.) "ROSENDA 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.
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 parte praying 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 sign the defective page, but also by its bearing the coincident
from the entire wig that it is really and actually composed of only two pages imprint of the seal of the notary public before whom the
duly signed by the testatrix and her instrumental witnesses. As earlier stated, testament was ratified by testatrix and all three witnesses.
the first page which contains the entirety of the testamentary dispositions is The law should not be so strictly and literally interpreted as to
signed by the testatrix at the end or at the bottom while the instrumental penalize the testatrix on account of the inadvertence of a
witnesses signed at the left margin. The other page which is marked as single witness over whose conduct she had no control where
"Pagina dos" comprises the attestation clause and the acknowledgment. The the purpose of the law to guarantee the Identity of the
acknowledgment itself states that "This Last Will and Testament consists of testament and its component pages is sufficiently attained, no
two pages including this page". intentional or deliberate deviation existed, and the evidence
on record attests to the fun observance of the statutory
In Singson v. Florentino, et al.  (92 Phil. 161, 164), this Court made the requisites. Otherwise, as stated in Vda. de Gil. Vs. Murciano,
following observations with respect to the purpose of the requirement that the 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
attestation clause must state the number of pages used: 'witnesses may sabotage the will by muddling or bungling it or
the attestation clause.
The law referred to is article 618 of the Code of Civil
Procedure, as amended by Act No. 2645, which requires that WHEREFORE, the present petition is hereby granted. The orders of the
the attestation clause shall state the number of pages or respondent court which denied the probate of tile will, the motion for
sheets upon which the win is written, which requirement has reconsideration of the denial of probate, and the motion for appointment of a
been held to be mandatory as an effective safeguard against special administrator are set aside. The respondent court is ordered to allow
the possibility of interpolation or omission of some of the the probate of the wig and to conduct further proceedings in accordance with
pages of the will to the prejudice of the heirs to whom the this decision. No pronouncement on costs.
property is intended to be bequeathed (In re will of Andrada,
42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; SO ORDERED.
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
G.R. No. 1641            January 19, 1906
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because the lower court was of the opinion from
the evidence adduced at the hearing that Julio Javellana, one of the
witnesses, did not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions of section 618 of
the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q.       1641     Who first signed the will?
A.       1641     I signed it first, and afterwards Aniceto and the others.
Q.       1641     Who were those others to whom you have just
referred?
A.       1641     After the witness Aniceto signed the will I left the
house, because I was in a hurry, and at the moment when I was
leaving I saw Julio Javellana with the pen in his hand in position ready
to sign (en actitud de firmar). I believe he signed, because he was at
the table. . . .
Q.       1641     State positively whether Julio Javellana did or did not
sign as a witness to the will.
A.       1641     I can't say certainly, because as I was leaving the
house I saw Julio Javellana with the pen in his hand, in position ready
to sign. I believe he signed.
Q.       1641     Why do you believe Julio Javellana signed?
A.       1641     Because he had the pen in his hand, which was resting
on the paper, though I did not actually see him sign.
Q.       1641     Explain this contradictory statement.
A.       1641     After I signed I asked permission to leave, because I
was in a hurry, and while I was leaving Julio had already taken the
pen in his hand, as it appeared, for the purpose of signing, and when I
was near the door I happened to turn my face and I saw that he had
his hand with the pen resting on the will, moving it as if for the
purpose of signing.
Q.       1641     State positively whether Julio moved his hand with the
pen as if for the purpose of signing, or whether he was signing
A.       I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem to have
been questioned by any of the parties to the proceedings, but the court,
nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed
under the following circumstances the document in question, which
has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he
ordered that the document in question be written, and calling Julio
Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses,
executed the said document as his will. They were all together, and
were in the room where Jaboneta was, and were present when he
signed the document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the other two
witnesses. Aniceto Jalbuena then signed as a witness in the presence
of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to
leave, took his hat and left the room. As he was leaving the house
Julio Javellana took the pen in his hand and put himself in position to
sign the will as a witness, but did not sign in the presence of Isabelo
Jena; but nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator and of
the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the
signature of Javellana was not signed in the presence of Jena, in compliance
with the provisions of section 618 of the Code of Civil Procedure. The fact that The judgment of the trial court is reversed, without especial condemnation of
Jena was still in the room when he saw Javellana moving his hand and pen in costs, and after twenty days the record will be returned to the court form
the act of affixing his signature to the will, taken together with the testimony of whence it came, where the proper orders will be entered in conformance
the remaining witnesses which shows that Javellana did in fact there and then herewith. So ordered.
sign his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving, and that his back Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.
was turned while a portion of the name of the witness was being written, is of
no importance. He, with the other witnesses and the testator, had assembled
for the purpose of executing the testament, and were together in the same
room for that purpose, and at the moment when the witness Javellana signed
the document he was actually and physically present and in such position with
relation to Javellana that he could see everything which took place by merely
casting his eyes in the proper direction, and without any physical obstruction
to prevent his doing so, therefore we are of opinion that the document was in
fact signed before he finally left the room.

The purpose of a statutory requirement that the witness sign in the

presence of the testator is said to be that the testator may have ocular
evidence of the identity of the instrument subscribed by the witness
and himself, and the generally accepted tests of presence are vision
and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p.
599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if
the witnesses are together for the purpose of witnessing the execution of the
will, and in a position to actually see the testator write, if they choose to do so;
and there are many cases which lay down the rule that the true test of vision is
not whether the testator actually saw the witness sign, but whether he might
have seen him sign, considering his mental and physical condition and
position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo.,
579.)

The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in determining
whether the witnesses signed the instrument in the presence of each other, as
required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the execution
of the instrument were complied with, and that the lower court erred in denying
probate to the will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded
in these proceedings was satisfactorily proven to be the last will and testament
of Macario Jaboneta, deceased, and that it should therefore be admitted to
probate.
G.R. No. 93980 June 27, 1994 discrepancy in the color of ink when the instrumental
witnesses affixed their respective signatures. When subjected
CLEMENTE CALDE, petitioner, to cross-examination, Codcodio Nacnas as witness testified
vs. as follows:
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN
APED, respondents. Q And all of you signed on the same table?

Nestor P. Mondok for petitioner. A Yes, sir.

Lazaro Padong for private respondents. 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?
PUNO, J.:
A Yes, sir.
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 Q Who was the first to sign?
of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died
on March 20, 1976. A Calibia Lingdan Bulanglang.

The records show that decedent left behind nine thousand pesos (P9,000.00) Q After Calibia Lingdan Bulanglang was
worth of property. She also left a Last Will and Testament, dated October 30, made to sign — I withdraw the question. How
1972, and a Codicil thereto, dated July 24, 1973. Both documents contained did Calibia Lingdan Bulanglang sign the last
the thumbmarks of decedent. They were also signed by three (3) attesting will and testament?
witnesses each, and acknowledged before Tomas A. Tolete, then the
Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province. A She asked Judge Tolete the place where
she will affix her thumbmark so Judge Tolete
Nicasio Calde, the executor named in the will, filed a Petition for its allowance directed her hand or her thumb to her name.
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 Q After she signed, who was the second to
respondents, relatives of decedent, opposed the Petitioner filed by Calde, on sign allegedly all of you there present?
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 A Jose Becyagen.
execute the two documents because of her advanced age, illness and
deafness; that decedent’s thumbmarks were procured through fraud and
undue influence; and that the codicil was not executed in accordance with law. Q With what did Jose Becyagen sign the
testament, Exhibit "B" and "B-1"?
On June 23, 1988, the trial court rendered judgment on the case, approving
and allowing decedent’s will and its codicil. The decision was appealed to and A Ballpen.
reversed by the respondent Court of Appeals. It held:
Q And after Jose Becyagen signed his name
. . . (T)he will and codicil could pass the safeguards under with the ballpen, who was the next to sign?
Article 805 of the New Civil Code but for one crucial factor of
 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 court’s conclusion that both decedent’s 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
decedent’s 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 petitioner’s witnesses are rife with
contradictions, particularly the fact that the latter’s 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 decedent’s 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 petitioner’s 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 accused’s 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 person’s 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
tribunal’s 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
petitioner’s 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 decedent’s thumbmarking thereof, to the alleged
signing of the instrumental witnesses thereto in consecutive order.
Nonetheless, nowhere in Judge Tolete’s 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.
G.R. No. L-13431            November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to
probate Ana Abangan's will executed July, 1916. From this decision the
opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets,
the first of which contains all of the disposition of the testatrix, duly signed at
the bottom by Martin Montalban (in the name and under the direction of the
testatrix) and by three witnesses. The following sheet contains only the
attestation clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these omissions,
according to appellants' contention, are defects whereby the probate of the
will should have been denied. We are of the opinion that the will was duly
admitted to probate.
In requiring that each and every sheet of the will should also be signed on the
left margin by the testator and three witnesses in the presence of each other,
Act No. 2645 (which is the one applicable in the case) evidently has for its
object (referring to the body of the will itself) to avoid the substitution of any of
said sheets, thereby changing the testator's dispositions. But when these
dispositions are wholly written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case), their signatures on the left
margin of said sheet would be completely purposeless. In requiring this
signature on the margin, the statute took into consideration, undoubtedly, the
case of a will written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the bottom. A
different interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator
and the witnesses in the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its authenticity, another
signature on its left margin would be unneccessary; and if they do not
guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the
place where the testator and the witnesses must sign on the sheet that it
would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively
in letters placed on the upper part of the sheet, it is likewise clear that the
object of Act No. 2645 is to know whether any sheet of the will has been
removed. But, when all the dispositive parts of a will are written on one sheet
only, the object of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore,
without considering whether or not this clause is an essential part of the will,
we hold that in the one accompanying the will in question, the signatures of
the testatrix and of the three witnesses on the margin and the numbering of
the pages of the sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the latter does
not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the
first of which contains all the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the second contains only the
attestation clause and is signed also at the bottom by the three witnesses, it is
not necessary that both sheets be further signed on their margins by the
testator and the witnesses, or be paged.
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 guaranty their truth and authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these primordal 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 frustative of the testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that
the testarix knew the dialect in which the will is written. But the circumstance
appearing in the will itself that same was executed in the city of Cebu and in
the dialect of this locality where the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to presume that she knew this dialect in
which this will is written.

For the foregoing considerations, the judgment appealed from is hereby

affirmed with costs against the appellants. So ordered.
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. 1äwphï1.ñët
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 nowhere proved or claimed that the amendment deprived the appellants of
no control, where the purpose of the law to guarantee the identity of the any substantial right, and we see no error in admitting the amended petition.
testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. costs against appellants.
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
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 pasubali’t 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 bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true
lahat at bawa’t dahon ng kasulatan ito. 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
EUGENIA E. IGSOLO and usurpation of real property, all centering on petitioner’s right to occupy the
address: 500 San Diego St. properties of the decedent.3 It also asserted that contrary to the
Sampaloc, Manila Res. Cert. No. A-7717-37 representations of petitioner, the decedent was actually survived by 12
Issued at Manila on March 10, 1981. 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,
QUIRINO AGRAVA
Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981 Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedent’s signature
did not appear on the second page of the will, and the will was not properly
LAMBERTO C. LEAÑO
acknowledged. These twin arguments are among the central matters to this
address: Avenue 2, Blcok 7,
petition.
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
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
JUANITO ESTRERA
(3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito
address: City Court Compound,
Estrada. The RTC also called to fore "the modern tendency in respect to the
City of Manila Res. Cert. No. A574829
formalities in the execution of a will x x x with the end in view of giving the
Issued at Manila on March 2, 1981.
testator more freedom in expressing his last wishes;"7 and from this
perspective, rebutted oppositor’s arguments that the will was not properly
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod executed and attested to in accordance with law.
ng Maynila.
After a careful examination of the will and consideration of the testimonies of
(Sgd.) the subscribing and attesting witnesses, and having in mind the modern
PETRONIO Y. BAUTISTA 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
Doc. No. 1232 ; NOTARIO PUBLIKO will with the end in view of giving the testator more freedom in expressing his
Page No. 86 ; Until Dec. 31, 1981 last wishes, this Court is persuaded to rule that the will in question is authentic
Book No. 43 ; PTR-152041-1/2/81-Manila and had been executed by the testatrix in accordance with law.
Series of 1981 TAN # 1437-977-81
On the issue of lack of acknowledgement, this Court has noted that at the end
The three named witnesses to the will affixed their signatures on the left-hand of the will after the signature of the testatrix, the following statement is made
margin of both pages of the will, but not at the bottom of the attestation clause. under the sub-title, "Patunay Ng Mga Saksi":

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
"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 bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami namang mga
saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng
lahat at bawa’t 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 oppositor’s 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 oppositor’s 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 oppositor’s 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 another’s 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 testator’s 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.
36
Cagro v. Cagro  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.
her only signature appearing at the so-called "logical end"44 of the will on its
first page. Also, the will itself is not numbered correlatively in letters on each
page, but instead numbered with Arabic numerals. There is a line of thought
that has disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may not be
sufficient to deny probate to a will. Yet even as these omissions are not
decisive to the adjudication of this case, they need not be dwelt on, though
indicative as they may be of a general lack of due regard for the requirements
under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from
makes the probate denial inexorable.

Yet even if we consider what was affixed by the notary public as a jurat, the WHEREFORE, the petition is DENIED. Costs against petitioner.
will would nonetheless remain invalid, as the express requirement of Article
806 is that the will be "acknowledged", and not merely subscribed and sworn SO ORDERED.
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,
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 complainant’s 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 Respondent’s 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 Respondent’s notarial commission
is Revoked and Disqualified from reappointment as Notary Public
for two (2) years.14
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
testator’s 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 testator’s 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)
Respondent’s 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 respondent’s
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, respondent’s 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
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of
professional misconduct. He violated (1) the Lawyer’s 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.

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
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 petitioner’s 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 testator’s
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 testator’s 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 Leticia’s family to live with him and they took care of him. During that
time, the testator’s 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 CA’s allowance of the probate of the will of
Placido Valmonte.
This Court’s 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 Valmonte’s will by
imputing fraud in its execution and challenging the testator’s 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 testator’s 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.19 Furthermore, 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.
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

"It shall be sufficient if the testator was able at the time of making the will to WHEREFORE, the Petition is DENIED, and the assailed Decision and
know the nature of the estate to be disposed of, the proper objects of his Resolution of the Court of Appeals are AFFIRMED. Costs against petitioner.
bounty, and the character of the testamentary act.
SO ORDERED.
"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 testator’s 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
G.R. No. 211972               July 22, 2015
WILSON GO and PETER GO, Petitioners,
vs.
THE ESTATE OF THE LATE FELISA TAMIO DE BUENA VENTURA,
represented by RESURRECCION A. BIHIS, RHEA A. BIHIS, and REGINA
A. BIHIS; and RESURRECCION A. BIHIS, RHEA A. BIHIS and REGINA A.
BIHIS, in their personal capacities, Respondents.
x-----------------------x
G.R. No. 212045
ELLA A. GUERRERO, DELFIN A. GUERRERO, JR. and LESTER ALVIN A.
GUERRERO, Petitioners,
vs.
THE ESTATE OF THE LATE FELISA TAMIO DE BUENA VENTURA, herein
represented by RESURRECION A. BIHIS, RHEA A. BIHIS and REGINA A.
BIHIS, and RESURRECION A. BIHIS, RHEA A. BIHIS and REGINA A.
BIHIS, in their personal capacities, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated1 petitions for review on certiorari2 are the
Decision3 dated December 19, 2013 and the Resolution4 dated April 1, 2014
rendered by the Court of Appeals (CA) in CA-G.R. CV No. 96697, which
modified the Decision5 dated June 8, 2009 of the Regional Trial Court of
Quezon City, Branch 224 (RTC) in Civil Case No. Q-97-32515, and thereby
ordered: (a) the nullification of the Deed of Sale dated January 23, 1997 in
favor of Wilson Go (Wilson) and Peter Go (Peter), petitioners in G.R. No.
211972; (b) the reconveyance of the disputed property to the Estate of Felisa
Tamio; and (c) the cancellation of Transfer Certificate of Title (TCT) No. N-
1704 75, as well as the issuance of a new title in the name of the Estate of
Felisa Tamio by the Register of Deeds.
The Facts
On March 17, 1959, the late Felisa Tamio de Buenaventura (Felisa)
purchased from Carmen Zaragosa, Inc. a parcel of land with an area of 533
square meters, more or less, situated at Retiro corner Kanlaon Streets, Sta.
Mesa Heights, Quezon City (subject property) and, thus, TCT No. 45951/T-
233 was issued in her name. Thereafter, she constructed a three-storey
building thereon, called D'Lourds Building, where she resided until her death
on February 19, 1994.6 On February 10, 1960, Felisa supposedly sold the
subject property to one of her daughters, Bella Guerrero (Bella), the latter's
husband, Delfin Guerrero, Sr. (Delfin, Sr.), and Felimon Buenaventura, Sr.
(Felimon, Sr.), Felisa's common-law husband.7 Bella, co-petitioner in G.R. No.
212045, and Delfin, Sr. paid ₱15,000.00 as consideration therefor.8 Thus, TCT
No. 45951/T-233 in the name of Felisa was cancelled and TCT No.
498699 was issued in the names of Felimon, Sr. and Bella, married to Delfin,
Sr..
Sometime in 1968, Resurrecion A. Bihis10 (Resurrecion), the other daughter of
Felisa, sister of Bella, and respondent in both G.R. Nos. 211972 a nd 212045,
began to occupy the second floor of the D'Lourds Building and stayed therein
until her death in 2007.11
As it appears that TCT No. 49869 in the names of Felimon, Sr. and Bella,
married to Delfin, Sr., was irretrievably destroyed in the interim, Bella caused
its reconstitution and was issued TCT No. RT-74910 (49869),12 again
registered in their names.
When Felisa died on February 19, 1994, she allegedly bequeathed, in a
disputed last will and testament, half of the subject property to Resurrecion
and her daughters, Rhea A. Bihis (Rhea) and Regina A. Bihis (Regina),
corespondents in both G.R. Nos. 211972 and 212045 (collectively, the Bihis
Family). Thus, on April 19, 1994, the Bihis Family caused the annotation of an
adverse claim on TCT No. RT-74910 (49869). Felisa's purported will likewise
declared Bella as the administrator of the subject property.13
On the strength of such appointment, Bella filed, on May 24, 1994, a petition
for the probate of Felisa's will. She was eventually appointed as the
administratrix of the Estate of Felisa and, in an inventory of Felisa's properties,
Bella included the subject property as part of said estate.14
On January 22, 1997, the adverse claim of the Bihis Family was cancelled.
The following day, January 23, 1997, Felimon Buenaventura, Jr. (Felimon, Jr.)
and Teresita Robles, a.k.a. Rosalina Buenaventura Mariano15 (Teresita),
apparently the heirs of Felimon, Sr. (Heirs of Felimon, Sr.), executed a
purported Extrajudicial Settlement of the Estate of Felimon Buenaventura, Sr.,
and caused its annotation on TCT No. RT-74910 (49869). By virtue thereof,
TCT No. RT-74910 (49869) was cancelled and TCT No. N-170416 was issued
in the names of the Heirs of Felimon, Sr., Bella, and her co-petitioners in G.R.
No. 212045, Delfin A. Guerrero, Jr. (Delfin, Jr.) and Lester Alvin A. Guerrero
(Lester) (collectively, Bella, et al.).16
On the very same day, January 23, 1997, through a Deed of Sale of even
date, the subject property was sold to Wilson and Peter by Bella, et al. for the
amount of ₱4,500,000.00, a transaction completely unknown to Felisa's other
heirs, the Bihis Family. Thus, TCT No. N-170416 was cancelled and, in lieu
thereof, TCT No. 170475 was issued in the names of Wilson and Peter.
Thereafter, Wilson and Peter filed ejectment cases against the occupants
and/or lessees of the subject property.17
In July 1997, the probate court revoked the appointment of Bella as
administratrix of the Estate of Felisa and eventually, granted letters of
administration to Resurrecion.18 Hence, on October 17, 1997, herein
respondents, the Estate of Felisa, as represented by the Bihis Family, and the
Bihis Family, in their personal capacities (collectively, respondents), filed a
complaint for reconveyance and damages before the RTC, docketed as Civil
Case No. Q-97-32515, against Bella, et al., Wilson, Peter, and the Register of
Deeds of Quezon City, alleging that Felisa, during her lifetime, merely
entrusted the subject property to Felimon, Sr., Bella, and Delfin, Sr. for the
purpose of assisting Bella and Delfin, Sr. to obtain a loan and mortgage from
the Government Service Insurance System (GSIS). To facilitate the
transaction, Felisa agreed to have the title over the subject property
transferred to Bella and Felimon, Sr. However, Felisa never divested herself of
her ownership over the subject property, as evidenced by her continuous
residence thereon, as well as her act of leasing several units to various
tenants. In fact, in a letter19 dated September 21, 1970 (September 21, 1970
letter) addressed to Delfin, Sr., Felisa reminded Bella, Delfin, Sr., and
Felimon, Sr. that the subject property was merely entrusted to them for Bella
and Delfin, Sr. to procure a loan from the GSIS.20 At the bottom of the letter,
Bella's and Delfin, Sr.' s signatures appear beside their names.21
Likewise, respondents alleged that Wilson and Peter were buyers in bad faith,
as they were aware of the facts and circumstances that would have warranted
further inquiry into the validity of the title of the sellers, Bella, et al. They
averred that Wilson and Peter knew that the building was occupied by
individuals other than the sellers, as in fact, the Bihis Family was residing
therein.22
In their defense, Bella and Felimon, Jr. claimed that the subject property was
owned by Bella and (the late) Felimon, Sr., as evidenced by TCT No. RT-
74910 (49869), which title was issued to them as early as February 10, 1960.
Such title has therefore subsisted for almost thirty seven (37) years without
having been voided or nullified by a court decree. Moreover, they have
exercised acts of ownership over the subject property, such as m01igaging
the same and leasing the building to third parties. Finally, they asserted that
Bella's act of including the subject property in the inventory of properties of the
Estate of Felisa was merely because of inadvertence.23
For his part, Wilson claimed that when he and his brother, Peter, purchased
the subject property from Bella, et al. on January 23, 1997, he was not aware
of the judicial settlement of the Estate of Felisa. He testified that before they
acquired the subject property, he verified the validity of the title covering the
same with the Registry of Deeds, and that a period of two (2) months had
lapsed before the sale was consummated because his lawyer advised him to
request Bella to cancel the encumbrance annotated on the title over the
subject property. However, he asserted that .his lawyer merely advised him to
ask for the cancellation of the annotation but he was not aware of the details
surrounding the same. Eventually, the annotation was cancelled and that he
only knew that the subject property was included in the Estate of Felisa when
herein respondents' complaint before the RTC was filed. As such, he
maintained that he and Peter were purchasers in good faith.24
The RTC Ruling
In a Decision25 dated June 8, 2009, the RTC found that there was an implied
trust between Felisa, on the one hand, and Bella and Felimon, Sr., on the
other, created by operation of law. The RTC concluded that it was the
intention of the late Felisa to merely entrust to Bella and Felimon, Sr. the
subject property for the sole purpose of using the same as collateral to secure
a loan with the GSIS. As such, while it is true that a title was issued in the
names of Bella, Delfin, Sr., and Felimon, Sr. by virtue of the sale of the subject
property to them, it was clear that Felisa never intended to relinquish her
ownership over the subject property. In concluding so, the RTC gave
probative weight to the September 21, 1970 letter executed and signed by
Felisa which not only reminded Bella, Delfin, Sr., and Felimon, Sr. that the
subject property was merely entrusted to them for purposes of securing a loan
from the GSIS, but also expressed Felisa's desire to have the subject property
divided equally among her heirs.26
However, the R TC held that reconveyance can no longer be effected since
the subject property had already been transferred to Wilson and Peter, whom
it found to be purchasers in good faith. The RTC found that through Wilson's
testimony, they were able to disprove respondents' allegation that they were
aware of an infirmity in the title of the sellers when they acquired the subject
property.27
Consequently, as Bella, Delfin, Sr., and Felimon, Sr. were unjustly enriched at
the expense of the respondents who, as compulsory heirs, were also entitled
to their share in the subject property, the RTC directed Bella, et al. to pay
plaintiffs, jointly and severally, the amounts of: (a) ₱2,000,000.00 as
compensatory damages, representing half of the purchase price of the subject
property considering that reconveyance can no longer be granted; (b)
₱200,000.00 as moral damages; (c) ₱100,000.00 as exemplary damages; and
(d) ₱200,000.00 as attorney's fees.28
Dissatisfied, the following parties filed their separate appeals before the CA:
the Estate of Felisa; the Bihis Family; the Estate of Rosalinda B.
Mariano;29 and Bella, Delfin, Jr., and Lester.30 The CA simplified the issues
raised in the separate appeals, as follows: (a) whether or not there was a trust
established by Felisa in favor of Bella, Delfin, Sr., and Felimon, Sr.; (b)
whether or not the action for reconveyance had already prescribed; and (c)
whether or not Wilson and Peter are purchasers in good faith.31
The CA Ruling
In a Decision32 dated December 19, 2013, the CA modified the RTC Decision,
and thereby ordered: (a) the nullification of the Deed of Sale dated January
23, 1997 in favor of Wilson and Peter; ( b) the reconveyance of the disputed
property to the Estate of Felisa; and (c) the cancellation of TCT No. N-170475
in the name of Wilson and Peter, as well as the issuance of a new title in the
name of the Estate of Felisa by the Register of Deeds.33
In its ruling, the CA upheld the RTC's finding that an implied trust was
constituted between Felisa, during her lifetime, and Bella, Delfin, Sr., and
Felimon, Sr. when the former sold the subject property to the latter. Like the
RTC, it gave substantial weight and credence to the September 21, 1970
letter executed by Felisa which expressed her intention to convey the subject
property to Bella, Delfin, Sr., and Felimon, Sr. only for the purpose of obtaining
a loan from the GSIS. The CA similarly found that Felisa had not intended to
relinquish her ownership over the subject property in their favor, as evidenced
not only by the said letter but also by her contemporaneous and subsequent
acts of ownership, i.e., leasing the building to tenants, instituting ejectment
suits, having business permits issued in her name, and including the subject
property in her last will and testament.34
Moreover, the CA ruled that the issuance of TCT No. 49869 in the names of
Bella, Delfin, Sr., and Felimon, Sr. did not operate to vest ownership of the
subject property upon them, as a certificate of title is not equivalent to title.
Hence, the presentation of TCT No. 49869 does not conclusively prove their
claim of ownership over the subject property.35
With respect to the issue of whether or not the action for reconveyance based
on an implied trust had already prescribed, the CA found that prescription has
not set in. Citing jurisprudence, it held that an action for reconveyance based
on an implied trust prescribes in ten ( 10) years, to be counted from the date
of issuance of the Torrens title over the property. However, the rule applies
only when the claimant or the person enforcing the trust is not in possession
of the property. When the claimant is in actual possession of the property, the
action for reconveyance, which is effectively an action for quieting of title, is
imprescriptible. In this case, it has been indubitably established that the Bihis
Family have been in actual possession of the subject property; hence, their
action for reconveyance is imprescriptible.36
Finally, with regard to the question of whether or not Wilson and Peter are
purchasers in good faith, the CA ruled in the negative. It took into
consideration the admission made by Wilson that he has knowledge of the
adverse claim of the Bihis Family annotated on the title of the subject property
but denied knowledge of its contents. Likewise, he admitted that he directed
his lawyer to have the said annotation cancelled before purchasing the subject
property. Records also show that he knew that the Bihis Family have been
occupying the second floor of the D'Lourds Building. However, despite
knowledge of the foregoing facts, he and his brother failed to make the
necessary inquiries as to the validity of the title of the sellers, Bella, et al.
Consequently, he and Peter cannot be considered as buyers in good faith.37
Wilson and Peter, Bella, Delfin, Jr., and Lester, Felimon, Jr., and the Estate of
Rosalinda Buenaventura Mariano filed separate motions for
reconsideration,38 which were all denied in the Resolution39 dated April 1,
2014; hence, these petitions.
The Issues Before the Court
The issues advanced for the Court's consideration are: (a) whether or not the
CA erred in ruling that there was an implied trust created between Felisa, on
one hand, and Bella, Delfin, Sr., and Felimon, Sr., on the other; (b) whether or
not the action for reconveyance had not yet prescribed; and (c) whether or not
Wilson and Peter are purchasers in good faith.
The Court's Ruling
The petitions are bereft of merit.
The following facts are undisputed: in 1960, Felisa, as owner of the subject
property, transferred the same to her daughter Bella, married to Delfin, Sr.,
and Felimon, Sr. to assist them in procuring a loan from the GSIS. In view
thereof, her title over the property, TCT No. 45951/T-233, was cancelled and a
new one, TCT No. 49869, was issued in the names of Bella, married to Delfin,
Sr., and Felimon, Sr. After it was lost, TCT No. 49869 was reconstituted and
TCT No. RT-74910 (49869) was issued in their names.
Upon Felisa's death in 1994, the Bihis Family, Felisa's other heirs who have
long been occupying the subject property, caused the annotation of their
adverse claim over the same on TCT No. RT-74910 (49869). Subsequently,
however, or on January 22, 1997, the said annotation was cancelled, and the
next day, the Heirs of Felimon, Sr. executed an Extrajudicial Settlement of his
estate and caused its annotation on said title. TCT No. RT-74910 (49869) was
then cancelled and TCT No. N-170416 was issued in the names of Bella, et al.
Finally, by virtue of a Deed of Sale dated January 23, 1997, the subject
property was sold to Wilson and Peter, in whose names TCT No. 170475
currently exists. Months later, or on October 17, 1997,40 the complaint for
reconveyance and damages, docketed as Civil Case No. Q-97-32515, was
instituted.
From the foregoing factual milieu, the Court holds that: one, a trust was
established between Felisa, on the one hand, and Bella, Delfin, Sr., and
Felimon, Sr., on the other, albeit not an implied trust as concluded by the RTC
and the CA but an express one; two, the present action for reconveyance has
not yet prescribed; and, three, Wilson and Peter are not purchasers in good
faith.
I.
Trust is the right to the beneficial enjoyment of property, the legal title to which
is vested in another. It is a fiduciary relationship that obliges the trustee to deal
with the property for the benefit of the beneficiary.1âwphi1 Trust relations
between parties may either be express or implied. An express trust is created
by the intention of the trustor or of the parties, while an implied trust comes
into being by operation of law.41
Express trusts are created by direct and positive acts of the parties, by some
writing or deed, or will, or by words either expressly or impliedly evincing an
intention to create a trust. Under Article 1444 of the Civil Code, "[n]o particular
words are required for the creation of an express trust, it being sufficient that a
trust is clearly intended." It is possible to create a trust without using the word
"trust" or "trustee." Conversely, the mere fact that these words are used does
not necessarily indicate an intention to create a trust. The question in each
case is whether the trustor manifested an intention to create the kind of
relationship which to lawyers is known as trust. It is immaterial whether or not
he knows that the relationship which he intends to create is called a trust, and
whether or not he knows the precise characteristics of the relationship which
is called a trust.42
Further, in the case of Tamayo v. Callejo,43 the Court recognized that a trust
may have a constructive or implied nature in the beginning, but the registered
owner's subsequent express acknowledgement in a public document of a
previous sale of the property to another party effectively converted the same
into an express trust.44
In the present case, both the R TC and the CA found that an implied trust was
established, heavily giving credence, among others, to the September 21,
1970 letter executed by Felisa during her lifetime, which partly reads:
Dear Delfin,
Ipinaaabot ko sa iyo ang sulat kong ito upang malaman mo ang aking
nagiging damdamin. Hinihiling ko sa iyo at ipinakikiusap sa iyo tungkol doon
sa late at building ng D 'lourds.
Hindi naman kaila sa ivo kung papaano ko ito naisalin sa inyong pangalan
nina Filemon C. Buenaventura Sr., Bella Alvarez Guerrero at Delfin Guerrero
Sr. Ang dahilan nito ay dahil sa pag-utang sa GSIS.
Kaya gusto kong malaman mo na ito ay nagpapatotoo na ito ay sarili kong
pag-aari at walang sinumang nagbigay o tumulong sa akin sa lupang ito. At
maski si Ka Fe ling mo ay walang naibigay na pera dito.
Kaya hinihiling ko ang gusto kong mangyari sa ngayon ay maging
kaparehong-kapareho ang paghahati ng bawat isa sa anumang aking
kabuhayan.
Kaya hinihiling ko sa iyo Delfin na kung maaari lamang ay ang lahat ng
nakatala dito ay pirmahan ninyo.
x x x x45 (Emphasis and underscoring supplied)
Beneath the letter appear the signatures of Bella and Delfin, and the signature
of Felisa signing as "MOMMY" as well.46
Taking the contents of the foregoing letter into consideration – the validity and
due execution of which were never put in issue, hence, indubitably established
- the Court therefore differs from the finding of the courts a quo that an implied
trust was established; instead, the Court rules that an express trust was duly
proved in this case.
The words of Felisa in the above-quoted letter unequivocally and absolutely
declared her intention of transferring the title over the subject property to
Bella, Delfin, Sr., and Felimon, Sr. in order to merely accommodate them in
securing a loan from the GSIS. She likewise stated clearly that she was
retaining her ownership over the subject property and articulated her wish to
have her heirs share equally therein. Hence, while in the beginning, an implied
trust was merely created between Felisa, as trustor, and Bella, Delfin, Sr., and
Felimon, Sr., as both trustees and beneficiaries, the execution of the
September 21, 1970 letter settled, once and for all, the nature of the trust
established between them as an express one, their true intention irrefutably
extant thereon.
Bella's attempt to thwart the express trust established in this case by claiming
that she affixed her signature on the September 21, 1970 letter only "to
appease" her mother, Felisa, and that she could afford to sign the letter since
the title covering the subject property was in their name as owners
anyway,47 does not hold water. As correctly ruled by the CA, citing Lee Tek
Sheng v. CA,48 the "[m]ere issuance of the certificate of title in the name of any
person does not foreclose the possibility that the real property may be under
co-ownership with persons not named in the ce1iificate or that the registrant
may only be a trustee or that other parties may have acquired interest
subsequent to the issuance of the certificate of title,"49 as in this
case.50 Registration does not vest title; it is merely the evidence of such
title.51 Moreover, the Court notes that even during the proceedings before the
RTC, Bella never denied the purpose for which the sale to them of the subject
property was effected. Instead, they relied heavily and anchored their defense
on the existence of their certificate of title covering the subject property, which,
to reiterate, was insufficient to prove their ownership over the same
independent of the express trust.
In light of the foregoing, while the Court agrees with the RTC, as affirmed by
the CA, that Bella, Delfin, Sr., and Felimon, Sr. only hold the subject property
in trust for Felisa, the Court however finds that an express trust, not an implied
one, was established in this case.
II.
Anent the issue of prescription, the Court finds that the action for
reconveyance instituted by respondents has not yet prescribed, following the
jurisprudential rule that express trusts prescribe in ten (10) years from the time
the trust is repudiated.52
In this case, there was a repudiation of the express trust when Bella, as the
remaining trustee, sold the subject property to Wilson and Peter on January
23, 1997.53 As the complaint for reconveyance and damages was filed by
respondents on October 17, 1997,54 or only a few months after the sale of the
subject property to Wilson and Peter, it cannot be said that the same has
prescribed.
III.
Finally, with regard to the question of whether or not Wilson and Peter are
purchasers of the subject property in good faith, the Court concurs with the
CA' s finding that they are not.
A purchaser in good faith is one who buys the property of another without
notice that some other person has a right to, or an interest in, such property
and pays a full and fair price for the same at the time of such purchase, or
before he has notice of some other person's claim or interest in the
property.55 Corollary thereto, when a piece of land is in the actual possession
of persons other than the seller, the buyer must be wary and should
investigate the rights of those in possession. Without making such inquiry, one
cannot claim that he is a buyer in good faith. When a man proposes to buy or
deal with realty, his duty is to read the public manuscript, that is, to look and
see who is there upon it and what his rights are. A want of caution and
diligence, which an honest man of ordinary prudence is accustomed to
exercise in making purchases, is in contemplation of law, a want of good faith.
The buyer who has failed to know or discover that the land sold to him is in
adverse possession of another is a buyer in bad faith.56
In his testimony57 before the R TC, Wilson claimed to have verified the validity
of the title covering the subject property before the Registry of Deeds.
However, he also admitted that two (2) months had lapsed before the sale
could be consummated because his lawyer advised him to request Bella, one
of the sellers, to cancel the encumbrance annotated on the title of the subject
property. He also claimed that he had no knowledge about the details of such
annotation, and that he was aware that individuals other than the sellers were
in possession of the subject property.
As aptly concluded by the CA, such knowledge of the existence of an
annotation on the title covering the subject property and of the occupation
thereof by individuals other than the sellers negates any presumption of good
faith on the part of Wilson and Peter when they purchased the subject
property. A person who deliberately ignores a significant fact which would
create suspicion in an otherwise reasonable man is not an innocent purchaser
for value,58 as in this case.
WHEREFORE, the petitions are DENIED. The Decision dated December 19,
2013 and the Resolution dated April 1, 2014 of the Court of Appeals in CA-
G.R. CV No. 96697 are hereby AFFIRMED.
SO ORDERED.
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. 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 19861 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 19832 of the Regional Trial
Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament3 with codicil4 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.5 Petitioner, 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.
The following pronouncement in Garcia vs. Vasquez 13 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.
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.

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
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City,
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted
for probate is the holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto
and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong,
Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose
Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time of its
execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it
contained alterations and corrections which were not duly signed by decedent;
and, the will was procured by petitioners through improper pressure and
undue influence. The petition was likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a house and lot located in Cabadbaran,
Agusan Del Norte. He claimed that said property could not be conveyed by
decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must
decide only the question of identity of the will, its due
execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the
will for its failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in
question is different from the will actually executed by the
testatrix. The only objections raised by the oppositors . . . are
that the will was not written in the handwriting of the testatrix
which properly refers to the question of its due execution, and
not to the question of identity of will. No other will was alleged
to have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence
adduced, the identity of the will presented for probate must be
accepted, i.e., the will submitted in Court must be deemed to
be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in
the handwriting of the testatrix has been disputed, the
petitioners, however, have satisfactorily shown in Court that
the holographic will in question was indeed written entirely,
dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have
explicitly and categorically identified the handwriting with
which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given then
the aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the
testratix, (private respondent) Clemente Sand himself has
testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic
will in question was executed by the testatrix. To be of sound
mind, it is sufficient that the testatrix, at the time of making the
will, knew the value of the estate to be disposed of, the
proper object  of her bounty, and the character of the
testamentary act . . . The will itself shows that the testatrix
even had detailed knowledge of the nature of her estate. She
even identified the lot number and square meters of the lots
she had conveyed by will. The objects of her bounty were
likewise identified explicitly. And considering that she had
even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than
sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the testatrix has to
be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will. While it
was alleged that the said will was procured by undue and
improper pressure and influence on the part of the beneficiary
or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence
was exerted on the testatrix. (Private respondent) Clemente
Sand has testified that the testatrix was still alert at the time of
the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that
she is a very intelligent person and has a mind of her own.
Her independence of character and to some extent, her sense
of superiority, which has been testified to in Court, all show
the unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only
refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this
Court cannot find convincing reason for the disallowance of
the will herein.
Considering then that it is a well-established doctrine in the
law on succession that in case of doubt, testate succession
should be preferred over intestate succession, and the fact
that no convincing grounds were presented and proven for
the disallowance of the holographic will of the late Annie
Sand, the aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It held that the
decedent did not comply with Articles 813 and 814 of the New Civil Code,
which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the last
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions.
Art. 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must authenticate
the same by his full signature.
It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations
and cancellations made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed
in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable
to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
 (e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be his
will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 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.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the only issues
to be resolved are: (1) whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed;
and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law. It
held that Articles 813 and 814 of the New Civil Code, ante, were not complied
with, hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs.  Abangan, 40 Phil. 476, 479
(1919), 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 guaranty their truth
and authenticity. Therefore, the laws on this 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
last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements under
Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity
is the requirement that they be totally autographic or handwritten by the
testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably handwritten
by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will, but not
its probate. If the testator fails to sign and date some of the dispositions, the
result is that these dispositions  cannot be effectuated. Such failure, however,
does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242  (1984), this Court held:
 Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have
not been noted under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa
gave an identical commentary when he said "la omission de
la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were
made on the date of the holographic will or on testator's signature, 9 their
presence does not invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary conditions for the validity
of the holographic will (Article 810). The distinction can be traced to Articles
678 and 688 of the Spanish Civil Code, from which the present provisions
covering holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article
688.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon
the extrinsic validity of the will sought to be probated. However, in exceptional
instances, courts are not powerless to do what the situation constrains them to
do, and pass upon certain provisions of the will. 11 In the case at bench,
decedent herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John H. Sand (which
led oppositor Dr. Jose Ajero to question her conveyance of the same in its
entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc.
No. Q-37171, dated November 19, 1988, admitting to probate the holographic
will of decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs.
SO ORDERED.

Art. 688: Holographic wills may be executed only by persons

of full age.

In order that the will be valid it must be drawn on stamped

paper corresponding to the year of its execution, written in its
entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words,

the testator must identify them over his signature.

Foreigners may execute holographic wills in their own

language.

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in
Articles 813 and 814 of the same Code — are essential to the probate of a
holographic will.
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS
AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana Roxas
de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator.
After Letters of Administration had been granted to the petitioner, he delivered
to the lower court a document purporting to be the holographic Will of the
deceased Bibiana Roxas de Jesus. On May 26, 1973, respondent Judge Jose
Colayco set the hearing of the probate of the holographic Win on July 21,
1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana R. de
Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win addressed to
her children and entirely written and signed in the handwriting of the deceased
Bibiana R. de Jesus was found. The will is dated "FEB./61 " and states: "This
is my win which I want to be respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of
Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that
the letter dated "FEB./61 " is the holographic Will of their deceased mother,
Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively Identified her signature. They further testified that their deceased
mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue influence and improper
pressure, and (c) the alleged testatrix acted by mistake and/or did not intend,
nor could have intended the said Will to be her last Will and testament at the
time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been duly
executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month and
year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and year.
The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required by the
law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
 ART. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his holographic
Win the "year, month, and day of its execution," the present Civil Code omitted
the phrase Año mes y dia and simply requires that the holographic Will should
be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the petitioner
cannot plead liberal construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills.
We should not overlook the liberal trend of the Civil Code in the manner of
execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy —
The underlying and fundamental objectives permeating the
provisions of the law on wigs 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 sufficien 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 modem tendency with
respect to the formalities in the execution of wills. (Report of
the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
Bustos  (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator
expressed in his last will and testament on the ground that
any disposition made by the testator is better than that which
the law can make. For this reason, intestate succession is
nothing more than a disposition based upon the presumed will
of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements in
order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a
Will has been executed in substantial compliance with the formalities of the
law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil.
282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of
the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its
admission to probate, although the document may suffer from
some imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the form
followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled
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 guaranty their truth
and authenticity. ...

In particular, a complete date is required to provide against such

contingencies as that of two competing Wills executed on the same day, or of
a testator becoming insane on the day on which a Will was executed (Velasco
v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of
bad faith and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by the
testatrix herself and in a language known to her. There is also no question as
to its genuineness and due execution. All the children of the testatrix agree on
the genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic
Will is fatally defective because the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance with Article 810 of the Civil Code.
This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue influence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be allowed
under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is

REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.
G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming
to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare thus
to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa
City. In accordance with the rights of said Church, and that my executrix
hereinafter named provide and erect at the expose of my state a suitable
monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of
the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or
alteration in a holographic will the testator must authenticate
the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3,
197 3, reading in part:
The document Exhibit "C" was submitted to the National
Bureau of Investigation for examination. The NBI reported
that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same
person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether
the win, Exhibit 'C', should be admitted to probate although
the alterations and/or insertions or additions above-mentioned
were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art.
814 on the ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not
agree, nor was it impliedly understood, that the oppositors
would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of
the Civil Code is applicable to Exhibit "C". Finding the
insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to probate of Exhibit
"C".
WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since
the alterations and/or insertions were the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the
ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires
no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA filed this Petition for
Review on certiorari on the sole legal question of whether or not the original
unaltered text after subsequent alterations and insertions were voided by the
Trial Court for lack of authentication by the full signature of the testatrix,
should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made
by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interlined.1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4
de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing remains in the Will after
that which could remain valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra,  must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efficacy of the altered words themselves but not the essence and validity
of the Will itself. As it is, with the erasures, cancellations and alterations made
by the testatrix herein, her real intention cannot be determined with certitude.
As Manresa had stated in his commentary on Article 688 of the Spanish Civil
Code, whence Article 814 of the new Civil Code was derived:
esa disposicion en parrafo aparte de aquel que determine las
condiciones necesarias para la validez del testamento
olografo, ya porque, de admitir lo contrario, se Ilegaria al
absurdo de que pequefias enmiendas no salvadas, que en
nada afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en perfecta
armonia y congruencia con el art. 26 de la ley del Notariado
que declara nulas las adiciones apostillas entrerrenglonados,
raspaduras y tachados en las escrituras matrices, siempre
que no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor motivo cuando las
palabras enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de
ortografia o de purez escrituraria, sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo,  es preciso que las tachaduras,
enmiendas o entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo substancial la
express voluntad del testador manifiesta en el documento.
Asi lo advierte la sentencia de 29 de Noviembre de 1916, que
declara nulo un testamento olografo por no estar salvada por
el testador la enmienda del guarismo ultimo del año en que
fue extendido3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.
SO ORDERED.

... No infringe lo dispuesto en este articulo del Codigo (el 688)

la sentencia que no declara la nulidad de un testamento
olografo que contenga palabras tachadas, enmendadas o
entre renglones no salvadas por el testador bajo su firnia
segun previene el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la validez o eficacia
de tales palabras, y nunca al testamento mismo, ya por estar
G.R. Nos. 83843-44               April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 8102 of the New Civil
Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certificate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that
as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-
21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to
Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No.
934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective evidence, the trial
court rendered a joint decision dated February 28, 1985, allowing the probate
of the holographic will and declaring null and void the Deed of Absolute sale.
The court a quo had also directed the respondents (the defendants in Civil
Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00
representing the redemption price for the property paid by the plaintiff-
petitioner Sagrado with legal interest thereon from December 20, 1976, when
it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on
March 10, 1988 modified said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated and reversing the order
of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid
decision was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF
THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER
OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF
THE FIVE THOUSAND PESOS REPRESENTING THE
REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English,
is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned
and shared or the partition in favor of SAGRADO LABRADOR which
is the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at the
South is the property and assignment share of ENRICA LABRADOR,
also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise is also their
brother. That because it is now the time for me being now ninety three
(93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us,
meaning with their two mothers, hence there shall be no differences
among themselves, those among brothers and sisters, for it is I myself
their father who am making the apportionment and delivering to each
and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers
and sisters.
II — Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is
this that should be followed and complied with in order that any
differences or troubles may be forestalled and nothing will happen
along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos
and all coconut trees and all others like the other kind of bamboo by
name of Bayog, it is their right to get if they so need, in order that
there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of the
two mothers of my children, there shall be equal portion of each share
among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL)
which I am here hereof manifesting of the truth and of the fruits of our
labor which their two mothers, I am signing my signature below
hereof, and that this is what should be complied with, by all the
brothers and sisters, the children of their two mothers — JULIANA
QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your
father who made this writing (WILL), and he is, MELECIO
LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1âwphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the year
1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than
MELECIO LABRADOR, their father. (emphasis supplied) (p.
46, Rollo)
The law does not specify a particular location where the date should be placed
in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator. These requirements are present in the
subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
fishpond," and was not the date of execution of the holographic will; hence,
the will is more of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which defines a will as "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."

Respondents are in error. The intention to show 17 March 1968 as the date of
the execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to control
the disposition of his estate.

Anent the second issue of finding the reimbursement of the P5,000

representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property (fishpond)
with right to repurchase to Navat for P5,000, they were actually selling
property belonging to another and which they had no authority to sell,
rendering such sale null and void. Petitioners, thus "redeemed" the property
from Navat for P5,000, to immediately regain possession of the property for its
disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals dated March

10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).

SO ORDERED.
G.R. No. L-14003             August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special Proceedings
No. Q-2640, involves the determination of the quantity of evidence required for
the probate of a holographic will.
The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of said
testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against the nephew
of deceased Cesario Singson; that witness Francisco Azaola testified
that he saw the holographic will (Exh. C) one month, more or less,
before the death of the testatrix, as the same was handed to him and
his wife; that the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of the attorney
(Exh. F), and the general power of attorney (Exh. F-1), besides the
deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and
that there were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that the
penmanship appearing in the aforesaid documentary evidence is in
the handwriting of the testatrix as well as the signatures appearing in
the aforesaid documentary evidence is in the handwriting of the
testatrix as well as the signatures appearing therein are the signatures
of the testatrix; that said witness, in answer to a question of his
counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the stenographic
notes, when the same witness was asked by counsel if he was
familiar with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the affirmative
and when he was asked again whether the penmanship referred to in
the previous answer as appearing in the holographic will (Exh. C) was
hers (testatrix'), he answered, "I would definitely say it is hers"; that it
was also established in the proceedings that the assessed value of
the property of the deceased in Luskot, Quezon City, is in the amount
of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the
will was procured by undue and improper pressure and influence on the part
of the petitioner and his wife, and (2) that the testatrix did not seriously intend
the instrument to be her last will, and that the same was actually written either
on the 5th or 6th day of August 1957 and not on November 20, 1956 as
appears on the will.
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that the
will and the signature are in the writing of the testatrix, the probate being
contested; and because the lone witness presented by the proponent "did not
prove sufficiently that the body of the will was written in the handwriting of the
testatrix."
The proponent appealed, urging: first, that he was not bound to produce more
than one witness because the will's authenticity was not questioned; and
second, that Article 811 does not mandatorily require the production of three
witnesses to identify the handwriting and signature of a holographic will, even
if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if
the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present Civil Code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since no witness
may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualifications is a matter beyond
the control of the proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of
course, even if the law does not so express) "that the will and the signature
are in the handwriting of the testator". There may be no available witness of
the testator's hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of Article
811 may thus become an impossibility. That is evidently the reason why the
second paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may
be found (or what amounts to the same thing, that no competent witness may
be willing to testify to the authenticity of the will), and provides for resort to
expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not
be ignored that the requirement can be considered mandatory only in the case
of ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the court is convinced by
their testimony that the ill is genuine, it may consider it unnecessary to call for
expert evidence. On the other hand, if no competent witness is available, or
none of those produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent
that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code
of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421),
sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de
dicho precepto induce la conclusion de que siempre o por lo menos,
en la mayor parte de los casos, el Juez debe acudir al criterio pericial
para que le ilustre acerca de la autenticidad del testamento olografo,
aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de
proceder en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo lo hace necesario para
mayor garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion
facultativa del dicho profano de los testigos y un modo de desvanecer
las ultimas dudas que pudieran ocurrir al Juez acerca de la
autenticidad que trata de averigaur y declarar. Para eso se ha escrito
la frase del citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no estos
respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de
los sucesos y de su significacion, para responder debidamente de las
resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of justice
would be better served, in our opinion, by giving the parties ample opportunity
to adduce additional evidence, including expert witnesses, should the Court
deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record shall
not be retaken. No costs.
G.R. No. 123486           August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the authenticity of testators
holographic will has been established and the handwriting and
signature therein (exhibit S) are hers, enough to probate said will.
Reversal of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that after plaintiff
has completed presentation of his evidence and the defendant files a
motion for judgment on demurrer to evidence on the ground that upon
the facts and the law plaintiff has shown no right to relief, if the motion
is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec, 1 Rule
35 Revised Rules of Court). Judgment may, therefore, be rendered for
appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment
rendered allowing the probate of the holographic will of the testator
Matilde Seño Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased Matilde
Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental,
Branch 18, a petition3 for probate of the holographic will of the deceased, who
died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seño Vda. de
Ramonal, was of sound and disposing mind when she executed the will on
August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal
property was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition5 to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true hand" of Matilde Seño
Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will
after every disposition is out of the ordinary. If the deceased was the one who
executed the will, and was not forced, the dates and the signature should
appear at the bottom after the dispositions, as regularly done and not after
every disposition. And assuming that the holographic will is in the handwriting
of the deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud and
trickery.1âwphi1.nêt
Respondents presented six (6) witnesses and various documentary evidence.
Petitioners instead of presenting their evidence, filed a demurrer6 to evidence,
claiming that respondents failed to establish sufficient factual and legal basis
for the probate of the holographic will of the deceased Matilde Seño Vda. de
Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer
to Evidence having being well taken, same is granted, and the petition
for probate of the document (Exhibit "S") on the purported
Holographic Will of the late Matilde Seño Vda. de Ramonal, is denied
for insufficiency of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8 and in support
of their appeal, the respondents once again reiterated the testimony of the
following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3)
Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and
(6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite
an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,
where the special proceedings for the probate of the holographic will of the
deceased was filed. He produced and identified the records of the case. The
documents presented bear the signature of the deceased, Matilde Seño Vda.
de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by
the party against whom the evidence is offered.
deceased. She testified that the signature appearing in the holographic will is
the true and genuine signature of Matilde Seño Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:

Generosa Senon, election registrar of Cagayan de Oro, was presented to Instruction

produced and identify the voter's affidavit of the decedent. However, the
voters' affidavit was not produced for the same was already destroyed and no August 30, 1978
longer available.
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de
Ramonal was her aunt, and that after the death of Matilde's husband, the
latter lived with her in her parent's house for eleven (11) years from 1958 to (Sgd) Matilde Vda de Ramonal
1969. During those eleven (11) years of close association the deceased, she
acquired familiarity with her signature and handwriting as she used to August 30, 1978
accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings, and deceased 2. Josefina Salcedo must be given 1,500 square meters at Pinikan
always issued receipts. In addition to this, she (witness Matilde Binanay) Street.
assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors. (Sgd) Matilde Vda de Ramonal

Matilde Ramonal Binanay further testified that at the time of the death of August 30, 1978
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the deceased
3. My jewelry's shall be divided among:
and that all the dispositions therein, the dates, and the signatures in said will,
were that of the deceased.
1. Eufemia Patigas
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings 2. Josefina Salcedo
and documents signed by the deceased in connection with the proceedings of
her late husband, as a result of which he is familiar with the handwriting of the 3. Evangeline Calugay
latter. He testified that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not (Sgd) Matilde Vda de Ramonal
be sure.
August 30, 1978
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified 4. I bequeath my one (1) hectare land at Mandumol, Indahag to
that she processed the application of the deceased for pasture permit and was Evangeline R. Calugay
familiar with the signature of the deceased, since the signed documents in her
presence, when the latter was applying for pasture permit.
(Sgd) Matilde Vda de Ramonal
Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter. That August 30, 1978
after a long period of time she became familiar with the signature of the
 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in
favor of Evangeline R. Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs. Singson,
109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in
civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present civil code can not be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present
at the execution of the holographic will, none being required by law
(art. 810, new civil code), it becomes obvious that the existence of
witnesses possessing the requisite qualifications is a matter beyond
the control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not express) "that
the will and the signature are in the handwriting of the testator." There
may be no available witness acquainted with the testator's hand; or
even if so familiarized, the witness maybe unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811 may
thus become an impossibility. That is evidently the reason why the
second paragraph of article 811 prescribes that —
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to.
As can be see, the law foresees, the possibility that no qualified
witness ma be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in case of ordinary
testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness
need be present (art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to
be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by
the words "if the court deem it necessary", which reveal that what the
law deems essential is that the court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced
and the court is convinced by their testimony that the will is genuine, it
may consider it unnecessary to call for expert evidence. On the other
hand, if no competent witness is available, or none of those produced
is convincing, the court may still, and in fact it should resort to
handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production
of three witnesses is merely permissive. What the law deems
 essential is that the court is convinced of the authenticity of the will. Its
duty is to exhaust all available lines of inquiry, for the state is as much
interested in the proponent that the true intention of the testator be
carried into effect. And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable inference can be
drawn from a party's failure to offer expert evidence, until and unless
the court expresses dissatisfaction with the testimony of the lay
witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses definitely and in no uncertain terms testified that
the handwriting and signature in the holographic will were those of the testator
herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature therein,
and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109
Phil. 102, relied upon by the respondent Court of Appeals, was
applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to that the
date, text, and signature on the holographic will written entirely in the
hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least three
witnesses explicitly declare that the signature in the will is the genuine
signature of the testator.1âwphi1.nêt
We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word "shall" connotes a mandatory order. We have
ruled that "shall" in a statute commonly denotes an imperative obligation and
is inconsistent with the idea of discretion and that the presumption is that the
word "shall," when used in a statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give
effect to the wishes of the deceased and the evil to be prevented is the
possibility that unscrupulous individuals who for their benefit will employ
means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of the
testator.
It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of testator. In the
case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental,
he merely identified the record of Special Proceedings No. 427 before said
court. He was not presented to declare explicitly that the signature appearing
in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was
presented to identify the signature of the deceased in the voter's affidavit,
which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q.   And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro City. Would
you tell the court what was your occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A.   Collecting rentals.
Q.   From where?
A.   From the land rentals and commercial buildings at Pabayo-
Gomez streets.12
xxx     xxx     xxx
Q.   Who sometime accompany her?
A.   I sometimes accompany her.
Q.   In collecting rentals does she issue receipts?
A.   Yes, sir.13
xxx     xxx     xxx
Q.   Showing to you the receipt dated 23 October 1979, is this the one
you are referring to as one of the receipts which she issued to them?
A.   Yes, sir.
Q.   Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?
A.   Matilde vda. De Ramonal.
Q.   Why do you say that is the signature of Matilde Vda. De
Ramonal?
A.   I am familiar with her signature.
Q.   Now, you tell the court Mrs. Binanay, whether you know Matilde
vda de Ramonal kept records of the accounts of her tenants?
A.   Yes, sir.
Q.   Why do you say so?
A.   Because we sometimes post a record of accounts in behalf of
Matilde Vda. De Ramonal.
Q.   How is this record of accounts made? How is this reflected?
A.   In handwritten.14
xxx     xxx     xxx
Q.   In addition to collection of rentals, posting records of accounts of
tenants and deed of sale which you said what else did you do to
acquire familiarity of the signature of Matilde Vda De Ramonal?
A.   Posting records.
Q.   Aside from that?
A.   Carrying letters.
Q.   Letters of whom?
A.   Matilde.
Q.   To whom?
A.   To her creditors.15
xxx     xxx     xxx
Q.   You testified that at time of her death she left a will. I am showing
to you a document with its title "tugon" is this the document you are
referring to?
A.   Yes, sir.
Q.   Showing to you this exhibit "S", there is that handwritten "tugon",
whose handwriting is this?
A.   My Aunt.
Q.   Why do you say this is the handwriting of your aunt?
A.   Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not declare
that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the
fact that the will was not found in the personal belongings of the deceased but
was in the possession of Ms. Binanay. She testified that:
Q.   Mrs. Binanay, when you were asked by counsel for the petitioners
if the late Matilde Seno vda de Ramonal left a will you said, yes?
A.   Yes, sir.
Q.   Who was in possession of that will?
 A.   I. Q.   Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly
person is that correct?
Q.   Since when did you have the possession of the will?
A.   Yes, sir.
A.   It was in my mother's possession.
Q.   She was up and about and was still uprightly and she could walk
Q.   So, it was not in your possession? agilely and she could go to her building to collect rentals, is that
correct?
A.   Sorry, yes.
A.   Yes, sir.19
Q.   And when did you come into possession since as you said this
was originally in the possession of your mother? xxx     xxx     xxx

A.   1985.17 Q.   Now, let us go to the third signature of Matilde Ramonal. Do you

know that there are retracings in the word Vda.?
xxx     xxx     xxx
A.   Yes, a little. The letter L is continuous.
Q.   Now, Mrs. Binanay was there any particular reason why your
mother left that will to you and therefore you have that in your Q.   And also in Matilde the letter L is continued to letter D?
possession?
A.   Yes, sir.
A.   It was not given to me by my mother, I took that in the aparador
when she died. Q.   Again the third signature of Matilde Vda de Ramonal the letter L
in Matilde is continued towards letter D.
Q.   After taking that document you kept it with you?
A.   Yes, sir.
A.   I presented it to the fiscal.
Q.   And there is a retracing in the word Vda.?
Q.   For what purpose?
A.   Yes, sir.20
A.   Just to seek advice.
xxx     xxx     xxx
Q.   Advice of what?
Q.   Now, that was 1979, remember one year after the alleged
A.   About the will. 18 holographic will. Now, you identified a document marked as Exhibit R.
This is dated January 8, 1978 which is only about eight months from
August 30, 1978. Do you notice that the signature Matilde Vda de
In her testimony it was also evident that Ms. Binanay kept the fact about the
Ramonal is beautifully written and legible?
will from petitioners, the legally adopted children of the deceased. Such
actions put in issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seño Vda. de Ramonal. A.   Yes, sir the handwriting shows that she was very exhausted.

In the testimony of Ms. Binanay, the following were established:

 Q.   You just say that she was very exhausted while that in 1978 she A.   I used to be her personal driver.
was healthy was not sickly and she was agile. Now, you said she was
exhausted? Q.   In the course of your stay for 22 years did you acquire familiarity
of the handwriting of Matilde Vda de Ramonal?
A.   In writing.
A.   Yes, sir.
Q.   How did you know that she was exhausted when you were not
present and you just tried to explain yourself out because of the Q.   How come that you acquired familiarity?
apparent inconsistencies?
A.   Because I lived with her since birth.22
A.   That was I think. (sic).
xxx     xxx     xxx
Q.   Now, you already observed this signature dated 1978, the same
year as the alleged holographic will. In exhibit I, you will notice that Q.   Now, I am showing to you Exhibit S which is captioned "tugon"
there is no retracing; there is no hesitancy and the signature was dated Agosto 30, 1978 there is a signature here below item No. 1, will
written on a fluid movement. . . . And in fact, the name Eufemia R. you tell this court whose signature is this?
Patigas here refers to one of the petitioners?
A.   Yes, sir, that is her signature.
A.   Yes, sir.
Q.   Why do you say that is her signature?
Q.   You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will marked
as Exhibit X but in the handwriting themselves, here you will notice A.   I am familiar with her signature.23
the hesitancy and tremors, do you notice that?
So, the only reason that Evangeline can give as to why she was familiar with
A.   Yes, sir. 21 the handwriting of the deceased was because she lived with her since birth.
She never declared that she saw the deceased write a note or sign a
document.
Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:
The former lawyer of the deceased, Fiscal Waga, testified that:
Q.   You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years. Could you tell Q.   Do you know Matilde Vda de Ramonal?
the court the services if any which you rendered to Matilde Ramonal?
A.   Yes, sir I know her because she is my godmother the husband is
A.   During my stay I used to go with her to the church, to market and my godfather. Actually I am related to the husband by consanguinity.
then to her transactions.
Q.   Can you tell the name of the husband?
Q.   What else? What services that you rendered?
A.   The late husband is Justo Ramonal.24
A.   After my college days I assisted her in going to the bank, paying
taxes and to her lawyer. xxx     xxx     xxx

Q.   What was your purpose of going to her lawyer? Q.   Can you tell this court whether the spouses Justo Ramonal and
Matilde Ramonal have legitimate children?
A.   As far as I know they have no legitimate children.25
xxx     xxx     xxx
Q.   You said after becoming a lawyer you practice your profession?
Where?
A.   Here in Cagayan de Oro City.
Q.   Do you have services rendered with the deceased Matilde vda de
Ramonal?
A.   I assisted her in terminating the partition, of properties.
Q.   When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?
A.   It is about the project partition to terminate the property, which
was under the court before.26
xxx     xxx     xxx
Q.   Appearing in special proceeding no. 427 is the amended
inventory which is marked as exhibit N of the estate of Justo Ramonal
and there appears a signature over the type written word Matilde vda
de Ramonal, whose signature is this?
A.   That is the signature of Matilde Vda de Ramonal.
Q.   Also in exhibit n-3, whose signature is this?
A.   This one here that is the signature of Mrs. Matilde vda de
Ramonal.27
xxx     xxx     xxx
Q.   Aside from attending as counsel in that Special Proceeding Case
No. 427 what were the other assistance wherein you were rendering
professional service to the deceased Matilde Vda de Ramonal?
A.   I can not remember if I have assisted her in other matters but if
there are documents to show that I have assisted then I can recall.28
xxx     xxx     xxx
Q.   Now, I am showing to you exhibit S which is titled "tugon", kindly
go over this document, Fiscal Waga and tell the court whether you are
familiar with the handwriting contained in that document marked as
exhibit "S"?
A.   I am not familiar with the handwriting.
Q.   This one, Matilde Vda de Ramonal, whose signature is this?
A.   I think this signature here it seems to be the signature of Mrs.
Matilde vda de Ramonal.
Q.   Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A.   Well, that is similar to that signature appearing in the project of
partition.
Q.   Also in item no. 3 there is that signature Matilde Vda de Ramonal,
can you tell the court whose signature is that?
A.   As I said, this signature also seems to be the signature of Matilde
vda de Ramonal.
Q.   Why do you say that?
A.   Because there is a similarity in the way it is being written.
Q.   How about this signature in item no. 4, can you tell the court
whose signature is this?
A.   The same is true with the signature in item no. 4. It seems that
they are similar.29
xxx     xxx     xxx
Q.   Mr. Prosecutor, I heard you when you said that the signature of
Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
A.   Yes, it is similar to the project of partition.
 Q.   So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which
you have made?
A.   That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will
to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs.  Singson,31 ruling
that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said 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 guaranty
their truth and authenticity. Therefore, the laws on this 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.
Comparing the signature in the holographic will dated August 30, 1978,33 and
the signatures in several documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the
strokes are different. In the letters, there are continuous flows of the strokes,
evidencing that there is no hesitation in writing unlike that of the holographic
will. We, therefore, cannot be certain that ruling holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seño vda. de
Ramonal.1âwphi1.nêt
No costs. SO ORDERED.

However, we cannot eliminate the possibility of a false document being

adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased. In
the testimony of Ms. Binanay, she revealed that the will was in her possession
as early as 1985, or five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by
her during her lifetime. The only chance at comparison was during the cross-
examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay
to compare the documents which contained the signature of the deceased
with that of the holographic will and she is not a handwriting expert. Even the
former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will.
G.R. No. L-58509 December 7, 1982 (4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner- The appellees likewise moved for the consolidation of the
appellant, case with another case Sp. Proc. No, 8275). Their motion was
vs. granted by the court in an order dated April 4, 1977.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor. On November 13, 1978, following the consolidation of the
cases, the appellees moved again to dismiss the petition for
Luciano A. Joson for petitioner-appellant. the probate of the will. They argued that:

Cesar Paralejo for oppositor-appellee. (1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla;
and
RELOVA, J.:
(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
Upon opposition of the appellant, the motion to dismiss was
denied by the court in its order of February 23, 1979.
As found by the Court of Appeals:

The appellees then filed a motion for reconsideration on the

... On January 11, 1977, appellant filed a petition with the
ground that the order was contrary to law and settled
Court of First Instance of Rizal for the probate of the
pronouncements and rulings of the Supreme Court, to which
holographic will of Ricardo B. Bonilla and the issuance of
the appellant in turn filed an opposition. On July 23, 1979, the
letters testamentary in her favor. The petition, docketed as
court set aside its order of February 23, 1979 and dismissed
Sp. Proc. No. 8432, was opposed by the appellees Amparo
the petition for the probate of the will of Ricardo B. Bonilla.
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias
The court said:
and Ephraim Bonilla on the following grounds:

... It is our considered opinion that once the original copy of

(1) Appellant was estopped from claiming that the deceased
the holographic will is lost, a copy thereof cannot stand in lieu
left a will by failing to produce the will within twenty days of
of the original.
the death of the testator as required by Rule 75, section 2 of
the Rules of Court;
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme
Court held that 'in the matter of holographic wills the law, it is
(2) The alleged copy of the alleged holographic will did not
reasonable to suppose, regards the document itself as the
contain a disposition of property after death and was not
material proof of authenticity of said wills.
intended to take effect after death, and therefore it was not a
will
MOREOVER, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B.
(3) The alleged hollographic will itself,and not an alleged copy
Bonilla died on May 13, 1976. In view of the lapse of more
thereof, must be produced, otherwise it would produce no
than 14 years from the time of the execution of the will to the
effect, as held in Gam v. Yap, 104 Phil. 509; and
 death of the decedent, the fact that the original of the will may be exhibited and tested before the probate court," Evidently, the
could not be located shows to our mind that the decedent had photostatic or xerox copy of the lost or destroyed holographic will may be
discarded before his death his allegedly missing Holographic admitted because then the authenticity of the handwriting of the deceased can
Will. be determined by the probate court.

Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the
trial court committed the following assigned errors:
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE

DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING

APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at
least three Identifying witnesses are required. However, if the holographic will
has been lost or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the testator
in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a
photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the case
of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself
must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of the deceased