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oT AGAPITA N. CRUZ, petitioner,

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vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.

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G.R. No. L-32213 November 26, 1973

FACTS:

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This case pertains to a crucial legal question regarding the execution of a
last will and testament. The petitioner, Agapita N. Cruz, the surviving spouse of

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the late Valente Z. Cruz and the respondents, Hon. Judge Guillermo P. Villasor

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(Presiding Judge of Branch I, Court of First Instance of Cebu) and Manuel B. Lugay.
The case revolved around the probate of Valente Z. Cruz’s last will and

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testament (Exhibit “E”). Agapita N. Cruz opposed the allowance of the will,
alleging that it was executed through fraud, deceit, misrepresentation, and undue
influence. She contended that the will was not executed in accordance with the
law.

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Under Article 805 of the new Civil Code requires at least three credible
witnesses to attest and subscribe to the will. Likewise, under Article 806 mandates
that the testator and the witnesses must acknowledge the will before a notary
public.
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Among the three instrumental witnesses to the will—Deogracias T.

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Jamaloas Jr., Dr. Francisco Pañares, and Atty. Angel H. Teves Jr.—the last named

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was also the Notary Public before whom the will was supposed to have been
acknowledged.

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The question boiled down to whether the will was attested and subscribed

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by at least three credible witnesses in the presence of the testator and each other,

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considering that the three attesting witnesses must appear before the notary

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public to acknowledge the same.

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Agapita argued that since the third witness was the notary public himself,
only two witnesses appeared before the notary public to acknowledge the will.

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However, Manuel B. Lugay (the supposed executor of the will) maintained that

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there was substantial compliance with the legal requirement, even if the notary
public acted as one of the witnesses. He cited American Jurisprudence, which
recognizes practical reasons for upholding a will beyond purely technical
considerations.

ISSUE:
Whether or not the will was executed in accordance to the formalities of
the law under Article 805 and 806 of the New Civil Code, requiring at least three
(3) credible witnesses to the will to be acknowledge before a notary public.

RULING:
The court upheld the probate of the will, emphasizing the need to balance
technicalities with practicality in such matters. To allow the notary public to act as
third witness, or one 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 the will.
Hence, the law would not be duly observed. 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 admit as his own; and to assent as
genuine. 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.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangement, That function would defeated if the
notary public were one of the attesting instrumental witnesses. For he would be
interested sustaining the validity of the will as it directly involves him and the
validity of his own act. It will defeat the purpose of the law.