G.R. No.

L-51546 January 28, 1980

JOSE ANTONIO GABUCAN
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR

Facts:
The will of the late Rogaciano Gabucan is subject to probate before the court. But it was dismissed
because the requisite documentary stamp was not affixed to the notarial acknowledgment in the will
and, hence, according to respondent Judge, it was not admissible in evidence. Petitioner now files a
petition for mandamus to compel the lower court to allow appeal from such decision.

Issue:
Whether or not the probate of the will should have been dismissed because there was no
documentary stamp affixed in the will.

Held:
No, the probate of the will should not have been dismissed because there was no documentary
stamp affixed in the will. While it is true that the Tax Code requires an instrument, document, or
paper to be stamped in order for it to be recorded or to be used or admitted as evidence in court,
wthe probate court should have done was to require the petitioner or proponent to affix the requisite
thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable
portion of that document. The documentary stamp may be affixed at the time the taxable document
is presented in evidence