133. [G.R. No. L-32213. November 26, 1973.] one of the attesting or instrumental witnesses.

To allow the
AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO
P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.
Facts: the late Valente Z. Cruz executed a last will and
testament of wherein Deogracias T. Jamaoas, Jr., Dr.
Francisco Pañares, and Atty. Angel H. Teves, Jr., signed as
instrumental witnesses. Atty. Teves also served as the Notary
Public before whom the will was supposed to have been
acknowledged.
Agapita N. Cruz, the surviving spouse of the said deceased,
opposed the allowance of the will alleging that the will was
executed through fraud, deceit, misrepresentation and
undue influence; that the said instrument was executed
without the testator having been fully informed of the
contents thereof, particularly as to what properties he was
disposing; and that the supposed last will and testament was
not executed in accordance with law. As the third witness is
the notary public himself, petitioner argues that the result is
that only two witnesses appeared before the notary public to
acknowledge the will.
notary public to act as third witness, or one of the attesting
and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would
be in contravention of the provisions of Article 805 requiring
at least three credible witnesses to act as such and of Article
806 which requires that the testator and the required
number of witnesses must appear before the notary public to
acknowledge the will.
Admittedly, there are American precedents holding that a
notary public may, in addition, act as a witness to the
execution of the document he has notarized. But these
authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein, because
the notaries public and witnesses referred to in the
aforecited cases merely acted as instrumental, subscribing or
attesting witnesses, and not as acknowledging witnesses.
Here the notary public acted not only as attesting witness but
also as acknowledging witness.

On the other hand, private respondent-appellee, Manuel B.

Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having
at least three attesting witnesses even if the notary public
acted as one of them, as supported by American
Jurisprudence.

RTC: allowed the probate of the will.

Issue: whether the subject last will and testament was

executed in accordance with law, particularly Articles 805 and
806 of the new Civil Code.

Ruling: the last will and testament in question was not

executed in accordance with law.

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 notary public before whom the will was acknowledged

cannot be considered as the third instrumental witness since
he cannot acknowledge before himself his having signed the
will. To acknowledge before means to avow, to own as
genuine, to assent, to admit; and "before" means in front or
preceding in space or ahead of. Consequently, if the third
witness were the notary public himself, he would have to
avow, assent, or admit his having signed the will in front of
himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other
to acknowledge his participation in the making of the will. To
permit such a situation to obtain would be sanctioning a
sheer absurdity.

Furthermore, the function of a notary public is, among

others, to guard against any illegal or immoral
arrangements. It would be defeated if the notary public were
141. [G.R. No. 27440. December 24, 1927.]
JOSE VILLAFLOR, petitioner-appellant, vs. DEOGRACIAS
TOBIAS ET AL., oppositors-appellees.
Facts: a will was allegedly executed by one Gregoria Villaflor
and was submitted before the court for probate. The
testatrix's name was signed by one Claro Lazo, a clerk in the
office of the municipal treasurer of Santo Domingo, and the
attesting witnesses were Vicente Tacderas, municipal
president, Rufino D. Soliven, chief of police, and Mariano
Pizarro, municipal treasurer, all of the town of Santo
Domingo. Jose Villaflor , Deogracias Tobias, and several other
whose names do not appear in the record contested the will
upon the following grounds:
1. That it was not signed by the alleged testatrix
personally though she was well able to do so at the time
of the execution of the document;
2. That said testatrix did not authorize any one to
sign the alleged will in her name;
3. That both before and after the execution of the
document, Gregoria Villaflor signed various documents
by thumb marks;
4. That although it is true that the testatrix requested
that the will be prepared, she nevertheless refused to
sign it because it was contrary to her desires and
instructions;
5. That subsequent to the date upon which the alleged
will was executed, Gregoria Villaflor on several
occasions stated that it was not her testament; and
6. That the alleged will was not executed or signed in
conformity with the law.
witnesses to the clause. All of the pages, including that upon
which the attestation clause was written, bore the signatures
of all of the witnesses and the name of the testatrix was
written by another person at her request and in the places
required by law. SC held,that in these circumstances the
writing of the attestation clause on a separate page did not
invalidate the will and that the writing of the name of the
testatrix by another person at her request was in sufficient
compliance with the law.
Also the fact that the name of the testatrix was written by
another person, and that she did not sign by thumb-mark, is
easily explained and is evidently due to an attempt on the
part of the lawyer Gallardo to comply strictly with the
following clause in the Spanish text of section 618 of the
Code of Civil Procedure.
While the contestants testified that the testatrix on various
occasions subsequent to the execution of the will, had stated
that it was not in conformity with her instructions and that it
was not her will, those statements were of little to no
importance. The testatrix was an old woman and might well
have made the statements by way of justification in
conversation with persons who considered themselves
wronged by the provisions of her will, but expressions of
that kind cannot, of course, work the revocation of the
document.

RTC: denied the petition for the probate of will based on

grounds abovementioned.

Issue: whether the subject will was made in accordance with

the law.

Ruling: The will in question is dated July 12, 1923, and was
prepared by a lawyer, Eustaquio Gallardo, and as far as
appearance go, was executed in strict compliance with the
provisions of section 618 of the Code of Civil Procedure for
the execution of wills.

In testifying in this case, Claro Lazo upon being asked to

enumerate the names of the persons present at the time of
the signing of the document, omitted the name of Soliven.
But it appears from the transcript of the testimony that he
afterwards corrected his original statement and testified that
Soliven, as well as the other witnesses to the will, was
present while all of the signatures were affixed. Lawyer
Gallardo was present during the whole proceeding and as he
appears to have possessed full knowledge of the formal
requirements for the execution of a will, it is highly
improbable that the would have allowed the will in question
to be signed without the presence of the testatrix and of all
of the witnesses.

The attestation clause of a will was written on a separate

page and not on the last page of the body of the document. It
appeared from the document itself that if the clause had
been written on the said last page, there would not have
been sufficient space on that page for the signatures of the
149. [G.R. Nos. 75005-06. February 15, 1990.]
JOSE RIVERA, petitioner, vs. INTERMEDIATE APPELLATE
COURT and ADELAIDO J. RIVERA, respondents.
Facts: On May 30, 1975, a prominent and wealthy resident of
that town named Venancio Rivera died. On July 28, 1975,
Jose Rivera, claiming to be the only surviving legitimate son
of the deceased, filed a petition for the issuance of letters of
administration over Venancio's estate. The petition was
opposed by Adelaido J. Rivera, who denied that Jose was the
son of the decedent. Adelaido averred that Venancio was his
father and did not die intestate but in fact left two
holographic wills. Adelaido filed, also with the RTC Angeles
City, a petition for the probate of the holographic wills. The
petition was in turn opposed by Jose, who reiterated that he
was the sole heir of Venancio's intestate estate.
The two cases were consolidated and Adelaido was later
appointed special administrator. After joint trial, the court
found that Jose Rivera was not the son of the decedent but of
a different Venancio Rivera who was married to Maria Vital.
The holographic wills were also admitted to probate. CA
affirmed the decision.
In support of his claim that he was the sole heir of the late
Venancio, Jose sought to show that the said person was
married in 1928 to his mother. He submitted for this purpose
the marriage certificate of the couple and his own baptismal
certificate where the couple was indicated as his parents. He
also presented Domingo Santos, who testified that Jose was
indeed the son of the couple and that he saw Venancio and
Jose together several times. He insisted that Adelaido and his
siblings were illegitimate children.
Adelaido, for his part, maintained that he and his brothers
and sisters were born to Venancio Rivera and Maria Jocson,
who were legally married and lived as such for many years.
He could not present his parents' marriage certificate
because the record of marriages for 1942 were destroyed
during the war. He also submitted his own birth certificate
and those of his sisters, who were each described therein as
the legitimate children of Venancio Rivera and Maria Jocson.
Atty. Regalado P. Morales, then 71 years of age, affirmed that
he knew the deceased and his parents, and it was during the
Japanese occupation that Venancio introduced to him Maria
Jocson as his wife. To prove that there were in fact two
persons by the same name of Venancio Rivera, Adelaido
offered Venancio Rivera's baptismal certificate showing that
his parents were Magno Rivera and Gertrudes de los Reyes,
as contrasted with the marriage certificate submitted by Jose,
which indicated that the Venancio Rivera subject thereof was
the son of Florencio Rivera and Estrudez Reyes.
Issue: whether petitioner’s opposition resulted in the
requirement of presenting 3 witnesses to verify the
handwriting and signature of the decedent.
Ruling: no, a stranger has no personality to contest the
subject will in this case.
Article 811 of the Civil Code provides: “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.”
The SC ruled that from the evidence of record, the
respondent court did not erred in holding that the Venancio
Rivera who married Maria Jocson in 1942 was not the same
person who married Maria Vital, Jose's legitimate mother, in
1928. Jose, then, had no relation whatsoever with the family
of Venancio Rivera and Maria Vital. Jose Rivera is not the son
of the deceased Venancio Rivera whose estate is in question.
Hence, being a mere stranger, he had no personality to
contest the wills and his opposition thereto did not have the
legal effect of requiring the three witnesses. The testimony of
Zenaida and Venancio Rivera, Jr., who authenticated the wills
as having been written and signed by their father, was
sufficient.
As to the issue of paternity:
It is true that Adelaido could not present his parents'
marriage certificate because, as he explained it, the marriage
records for 1942 in the Mabalacat civil registry were burned
during the war. Even so, he could still rely on the
presumption of marriage, since it is not denied that Venancio
Rivera and Maria Jocson lived together as husband and wife
for many years, begetting seven children in all during that
time.
According to Article 220 of the Civil Code: In case of doubt, all
presumptions favor the solidarity of the family. Thus every
intendment of the law or fact leans toward the validity of
marriage, the indissolubility of the marriage bonds, the
legitimacy of children.
Although Jose did present his parents' marriage certificate,
Venancio was described therein as the son of Florencio
Rivera. Presumably, he was not the same Venancio Rivera
described in Exhibit 4, his baptismal certificate, as the son of
Magno Rivera. While we realize that such baptismal
certificate is not conclusive evidence of Venancio's filiation
(which is not the issue here) it may nonetheless be
considered to determine his real identity. There is no
evidence that Venancio's father was called either Magno or
Florencio. What is more likely is that two or more persons
may live at the same time and bear the same name, even in
the same community.
The SC found that the indifference of Jose in asserting his
right as such when his father was still alive and the attitude of
Maria Vital who never objected when her husband
abandoned her and founded another family by another
woman, and in the same town at that is not understandable,
considering that they were living humbly compared to the
more comfortable life led by Adelaido and his siblings. The
court is more inclined to believe that Jose and Maria were
not related with the decedent and his family.