IN RE PROBATE OF THE WILL OF GABINA RAQUEL, deceased, AUREA MATIAS, PetitionerAppellant, - versus BASILIA SALUD, Oppositor-Appellee. G. R. NO.

. L-10751 , June 23, 1958 Appeal from an order of the Court of First Instance of Cavite (issued in its Special Proceedings No. 5253 on February 10, 1956) denying probate of the purported will of the late Gabina Raquel. Admittedly the deceased left no ascendants or descendants, and according to the proponents she executed the testamentary document on January 27, 1950, in the City of Cavite, in the presence of Modesta Gonzales, Felipa Samala and Lourdes Samonte, who signed as instrumental witnesses, and of attorney Ricardo Agbunag, who prepared the instrument. The document in question appears to be composed of three pages. On the lower half of the second page, preceding the attestation clause, appears the signature Gabina Raquel which is apparently of admitted authenticity. Alongside it is a smudge in violet ink, with blurred ridge lines, claimed by the proponents to be a thumbmark affixed by the testatrix. On the third page, at the end of the attestation clause appear the signatures appearing on the left margin of each page; and on the upper part of each pages left margin appears a violet ink smudge similar to the one previously described, accompanied by the written words Gabina Raquel and underneath said name by Lourdes Samonte. In the purported testament, most of the properties of the testatrix (appraised at over P160,000.00) are bequeathed to her niece Aurea Matias, in recompense for the services rendered to me for more than 30 years; some legacies are made to her other nephews and nieces surnamed Salud and Matias ; Aurea Matias is appointed executrix without bond. Below the signature Gabina Raquel set at the foot of the will proper, is an attestation clause in the Spanish language (like the will itself) and reading as follows: The testamentary capacity of the testatrix Gabina Raquel despite her ninety years of age and her disease (herpes zoster), is conceded. It is also undisputed that she mastered Spanish (the language in which the document is drawn) and that she could sign her name. The proponents evidence is to the effect that the deceased instructed attorney Agbunag to draft her will; that it was brought to her in the morning of January 27, 1950; that she had the witnesses summoned and received them in the ante sala of her house; that when the witnesses were seated around a table with her and attorney Agbunag, the will was read by the latter; that Gabina Raquel manifested conformity thereto and thumbmarked the foot of the document and the left margin of each page. Allegedly upon Agbunags insistence, she attempted to sign with his fountain pen, but was only able to affix the signature at the end of the testamentary dispositions (in the lower half of page two) because immediately after, she dropped the pen, grasping her right shoulder and complaining of pain. After 20 minutes, attorney Agbunag, seeing that Gabina Raquel could not proceed, instructed Lourdes Samonte to write Gabina Raquel by Lourdes Samonte next to each thumbmark, and thereafter witnesses Lourdes Samonte, Felipa Samala and Modesta Gonzalez signed, in that order, at the foot of the attestation clause and at the left margin of each page. It is to be noted that witness Modesta Gonzalez, a 64-year old woman did not testify, as she was found to be suffering from high blood pressure, and proponents expert evidence was to the effect that her memory was impaired, and unusual excitement might cost her life. The probate having been opposed by Basilia Salud, a niece of Gabina Raquel, the case was set for trial. After hearing, Judge Primitivo Gonzales of the Court of First Instance of Cavite rendered judgment

upholding the contentions of the oppositor and denied the documents admission to probate, principally on the following grounds: (1) That the attestation clause did not state that the testatrix and the witnesses signed each and every page of the will; and while the left margins of each page exhibit the words Gabina Raquel by Lourdes Samonte, the attestation does not express that Lourdes was expressly directed to sign for the testatrix; (2) That the proponent did not adequately explain the non- production of witness Modesta Gonzalez, contrary to sec. 11, Rule 77 of the Rules of Court; (3) That the alleged signing and thumbmarking by the deceased was not done in the presence of the witnesses, nor did the latter sign in the presence of Gabina Raquel; (4) That fraud and bad faith attended the execution of the will. From the adverse decision of the trial court, the proponent appealed directly to this Court, because the value of the properties involved in the litigation exceeded P50,000.00. The trial court refused credence to the evidence for the proponents on the basis of the expert testimony of Captain Jos Fernandez of the Philippine Constabularys Criminal Laboratory, to the ef fect that (1) the fingerprints appearing at the end and left margins of the will were impressed over the name of the testatrix, and after the name was written, contrary to what the proponents witnesses asserted; (2) that the words Gabina Raquel by Lourdes Samonte on the upper left hand margin of page two of the will were falsified and appear to have been written over a previous tracing; (3) that the person who wrote Gabina Raquel by Lourdes Samonte is different from the one who wrote Lourdes Samonte as signature of an attesting witness; (4) that the signature Lourdes Samonte on the left margin of page 3 of the testament was written only after that of Felipa Samala when the testimony for the proponent was that they were written in the reverse order; and (5) that the pen used in signing Gabina Raquel at the foot of the will had separated nibs, while the other signatures in the document were written with a round point pen, again contrary to the contention for the proponent that only one pen was used. After careful consideration of the testimony on record, we are of the opinion that the facts adverted to by the expert for the contestant do not clearly support the conclusions drawn by him. Thus, his assertion that the fingerprints were affixed after writing the name of the testatrix appears to be an inference drawn from the fact that the ink of the writing failed to spread along the ridge lines of the fingerprints. This conclusion obviously failed to take into account the fact that the evidence is that some 10 or 20 minutes elapsed between the affixing of the fingerprints and the writing of the marginal signatures, due to the fact that they were not written until after a long wait for the testatrixs attack of pain to subside. There was sufficient ti me for the fingerprint (which was made in rubber stamp ink) to dry, and recognized authorities on the matter point out that ink lines over rubber stamps will spread out if the stamp is not dry (Soderman OConnel, Modern Criminal Investigation, 2d Ed., p. 453); and if the stamp impression is allowed to dry thoroughly before the writing is written over it, the ink will not run out as it does on a damp ink line (Osborn, Questioned Documents, 2d Ed., p. 514). To such effect, the only composition of the rubber stamp ink no doubt contributes. Thus, while the spreading out or running out of the writing ink along the stamping ink lines proves that the writing was made later, the absence of spread does not prove that stamping ink lines were made after the writing was done.

As to the alleged forgery of Samontes signature in page 3, the lighter shade of the underlying characters strongly indicates that the overwriting was made to correct ink failure or other imperfection in the first writing. The experts opinion is also discredited by the fact that Samonte being available to the proponent (since she testified in favor of the will), there would be no sense in forging Samontes signature, when an authentic one was at proponents disposal all the time. And assuming it to be true that in page 3 of the will Exh. D, Samonte signed after Samala, while in the other pages she had signed ahead, such occasional departure from the order usually followed does not signify that the execution of the testament was in any way abnormal or fraudulent. As to the alleged use of two different pens, expert Fernandez conclusions are backed more by opinion than by facts, besides being contradicted by expert Espinosa, and the proponents other witnesses. The basis for the conclusions of expert Fernandez, who admitted having been engaged on a contingent basis, not being satisfactorily established and his testimony being contradicted by the two witnesses to the will and the expert for the defense, the lower court erred in considering that the preponderance of the evidence lay with contestants (Roxas vs. Roxas, 48 O. G. 2177; cf Galvez vs. Galvez, 26 Phil. 243; Samson vs. Tan Quintin, 44 Phil. 573). We do not venture to impute bias to the experts introduced during the trial, but we hasten to state that the positive testimony of the three attesting witnesses ought to prevail over the expert opinions which cannot be mathematically precise but which on the contrary, are subject to inherent infirmities. x x x Speculations on these matters should give way to the positive declarations of the attesting witnesses. The law impliedly recognizes the almost conclusive weight of the testimony of attesting witnesses when it provides that if the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity or any of them must be satisfactorily shown to the court. (Section 11, Rule 77, Rules of Court.) (Roxas vs. Roxas, supra) We are aware that the bequest of the greater portion of decedents estate in favor of proponent Aurea Matias is contained in the first page of the contested will, while the only authentic signature of the deceased appeared in the second page; but the appointment of proponent as executrix of the will without bond (con relevacion de fianza) appearing in the very same page (page 2) fully bespeaks the affection of the testatrix for the proponent, who had lived with the deceased, helped and served her for thirty years, and morally confirms the contested bequest. The court below likewise held against the proponent the fact that the subscribing witness Modesta Gonzalez was not a witness; claiming that such failure was a violation of sec. 11, Rule 77 of the Rules of Court. But while Modesta Gonzalez was not placed on the stand, the proponent made no secret of her whereabouts, nor of the reason why she was not asked to testify: the record shows that both Dr. Bellaflor and Dr. Sanchez agreed that Gonzalez was suffering from hypertension, that she was in the danger zone, and might collapse and die as a consequence of a little excitement on her part. The trial court, having expressly made of record that it would not like to assume responsibility for whatever might happen to this woman (t.s.n. p. 301), could not logically hold proponent to account for not risking Modestas death. At any rate, contestants were free to call her as their own witness, had they felt justified in so doing; so that no unfavorable inference can be drawn from the fact that Modesta Gonzalez was not called by the proponent to the witness stand.

Finally, the contestant urges that the fingermark of the testatrix can not be regarded as her valid signature since it does not show distinct identifying ridge lines; and thence, that the attestation clause, transcribed earlier in this opinion, should be held defective because it fails to state that Lourdes Samonte signed for the testator. This Court has repeatedly held that the legal requisite that the will should be signed by the testator is satisfied by a thumbprint or other mark affixed by him (De Gala vs. Ona, 53 Phil. 105; Dolor vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O. G. 2817; Lopez vs. Liboro, 46 O. G. (Supp. to No. 1) 211); and that where such mark is affixed by the decedent, it is unnecessary to state in the attestation clause that another person wrote the testators name at his request (Payad vs. Tolentino, 62 Phil. 849). While in some of these cases the signing by mark was described in the will or in the attestation clause, it does not appear that the Court ever held that the absence of such description is a fatal defect. Appellant relies on the case of Garcia vs. Lacuesta, G. R. L- 4067, Nov. 29, 1951, wherein this Court denied probate holding that a will signed with a cross written after the testators name is not a sufficient signature. But in that case no showing was made that the cross mark was the testators habitual signature nor was any explanation given why he should use a cross when he knew how to sign. In the case now before us, it was shown that the herpes zoster that afflicted the right arm and shoulder of testatrix made writing a difficult and painful act, to the extent that, after writing one signature on the second page, she dropped the pen because of an attack of pain that lasted many minutes and evidently discourage attempts to sign. As to the clarity of the ridge impressions, it is so dependent on aleatory circumstances (consistency of the ink, overinking, slipping of the finger, etc.) as to require a dexterity that can be expected of very few persons; and we do not believe testators should be required to possess the skill of trained officers. It is to be conceded that where a testator employs an unfamiliar way of signing, and both the attestation clause and the will are silent on the matter, such silence is a factor to be considered against the authenticity of the testament; but the failure to describe the unusual signature by itself alone is not sufficient to refuse probate when the evidence for the proponent fully satisfies the court (as it does satisfy us in this case) that the will was executed and witnessed as required by law. WHEREFORE, the judgment appealed from is reversed, and the document Exh. D ordered admitt ed to probate. Let the records be returned to the court of origin for further proceedings in accordance with this opinion. Costs against appellees.

[G.R. No. L-4067. November 29, 1951] In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, Petitioner, v. JULIANA LACUESTA, ET AL., Respondents. SYLLABUS 1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATORS NAME AT LATTERS DIRECTION. When the testator expressly caused another to sign the formers name, this fact must be recited in the attestation clause. Otherwise, the will is fatally defective. 2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the usual signature of the testator or even one of the ways by which he signed his name, that cross cannot be considered a valid signature. 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 do 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 of 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 testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D. (Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO 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 ruego del testador" 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 judgment 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 formers 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 testators 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. Petitioners 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 v. Gonzales and Ona, 53 Phil., 104; Dolar v. Diancin, 55 Phil., 479; Payad v. Tolentino, 62 Phil., 848; Neyra v. Neyra, 76 Phil., 296 and Lopez v. 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 a cross to a thumb mark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumb mark. What has been said makes it unnecessary for us to determine whether 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 costs against the petitioner. So ordered.

[G.R. No. L-15153. August 31, 1960. ] In the matter of the summary settlement of the Estate of the deceased Anacleta Abellana. LUCIO BALONAN, Petitioner-Appellee, v. EUSEBIA ABELLANA, ET AL., Oppositors-Appellants. 1. WILLS; EXECUTION OF WILL; SUBSCRIBED AT THE END BY SOME PERSON OTHER THAN THE TESTATOR, INSUFFICIENT COMPLIANCE WITH THE LAW. A will subscribed at the end thereof by some person other than the testator in such manner that the signature of said person appears above the typewritten statement "Por la Testadora Anacleta Abellana . . . Ciudad de Zamboanga," may not be admitted to probate for failure to comply with the express requirement of the law that the testator must himself sign the will or that his name be affixed thereto by some other person in his presence and by his express direction. Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the following assignment of error is made: "The appellants respectfully submit that the Trial Court erred in holding that the supposed testament, Exh.A, was signed in accordance with law; and in admitting the will to probate." In view of the fact that the appeal involves a question of law the said court has certified the case to us. The facts as found by the trial court are as follows: "It appears on record that the last Will and Testament (Exhibit A), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages (pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and under his name appears typewritten Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga, and on the second page appears the signature of the three (3) instrumental witnesses Blas Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. On the second page, which is the last page of the said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, Por la Testadora Anacleta Abellana. The will is duly acknowledged before Notary Public, Attorney Timoteo de los Santos." (Italics supplied.) The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of the law prescribing the manner in which a will shall be executed? The present law, Article 805 of the Civil Code, in part provides as follows: "Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators 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." (Italics supplied.) The clause "must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction," is practically the same as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:

"No will, except as provided in the preceding section shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be in writing and signed by the testator, or by the testators 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 each other. . . ." ( Italics supplied) Note that the old law as well as the new require that the testator himself sign the will, or if he cannot do so, the testators name must be written by some other person in his presence and by his express direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, Et Al., 4 Phil., 700:jgc:chanrobles.com.ph "It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that where the testator does not know how, or is unable, to sign, it will not be sufficient that one of the attesting witnesses signs the will at the testators request, the notary certifying thereto as provided in article 695 of the Civil Code, which, in this respect, was modified by section 618 above referred to, but it is necessary that the testa tors name be written by the person signing in his stead in the place where he would have signed if he knew how or was able so to do, and this in the testators presence and by his express direction; so that a will signed in a manner different than that prescribed by law shall not be valid and will not be allowed to be probated. "Where a testator does not know how, or is unable for any reason, to sign the will himself, it shall be signed in the following manner: 1aw library John Doe by the testator, Richard Roe; or in this form: By the testator, John Doe, Richard Roe. All this must be written by the witness signing at the request of the testator. "Therefore, under the law now in force, the witness Naval A. Vidal should have written at the bottom of the will the full name of the testator and his own name in one of the forms given above. He did not do so, however, and this failure to comply with the law is a substantial defect which affects the validity of the will and precludes its allowance, notwithstanding the fact that no one appeared to oppose it." virtua1aw library The same ruling was laid down in the case of Cuison v. Concepcion, 5 Phil., 552. In the case of Barut v. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. Cases of the same import are as follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya v. Domingo, 27 Phil., 330; Garcia v. Lacuesta, 90 Phil., 489). In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by Some other person in his presence and by his express direction. It appearing that the above provision of the law has not been complied with, we are constrained to declare that the said will of the deceased Anacleta Abellana may not be admitted to probate. Wherefore, the decision appealed from is hereby set aside and the petition for the probate of the will denied. With costs against petitioner.

[Adm. Case No. 4. March 21, 1946. ] In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA, PetitionerAppellee, v. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, Oppositors-Appellants. TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, PetitionersAppellants, v. TRINIDAD NEYRA and EUSTAQUIO MENDOZA, Oppositors-Appellees. 1. WILLS; TESTAMENTARY CAPACITY, DEFINED. Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. 2. D.; ID.; INSOMNIA, TUBERCULOSIS, DIABETES, NOT SUFFICIENT TO DESTROY MENTAL CAPACITY. Insomnia, in spite of the testimony of two doctors who testified for the opponents of the probate of a will, who stated that it tended to destroy mental capacity, was held not to affect the full possession of the mental faculties deemed necessary and sufficient for its execution. (Caguioa v. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, inspite of the physicians testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what was said to him and to communicate his desires. (Samsan v. Corrales Tan Quintin, 44 Phil., 573.) 3. ID.; ID.; OLD AGE OR ILL HEALTH INSUFFICIENT TO INVALIDATE WILL. Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. 4. ID.; ID.; EVIDENCE OF SOUND MIND. Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of executing the will. 5. ID.; ID.; SLEEPING SICKNESS (ADDISONS DISEASE) DOES NOT IMPAIR MENTAL FACULTIES. The mental faculties of persons suffering from Addisons disease, like the testatrix in this case remain unimpaired, partly due to the fact that, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. 6. ID.; SIGNING BY THUMBMARK; PRESENCE OF ATTESTING WITNESSES; TEST OF. The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix thumbmarked the will in question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully shown that the attesting witnesses were present at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time of the signing of the will, but whether they might have

seen each other sign, had they chosen to do so and, the attesting witnesses actually saw it in this case. (Jaboneta v. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is equivalent to her signature. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, supra.) 7. APPEAL; FINDINGS OF FACT OF TRIAL COURT, WHEN TO BE REVERSED. This court will not reverse any findings of fact by the trial court made upon conflicting testimony and depending largely upon the credibility of witnesses, who testified in the presence of the trial judge, unless the court below failed to take into consideration some material facts or circumstances or to weigh accurately all of the material facts and circumstances presented to it for consideration. This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First Instance of the City of Manila, on December 3, 1943, admitting to probate a will dated November 3, 1942, executed by the deceased Encarnacion Neyra; at the same time denying the probate of a previous will dated September 14, 1939, alleged to have been executed by the said testatrix. Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942, a petition in the Court of First Instance of Manila, for the probate of said will. On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who had not been named as beneficiaries in said will, filed on opposition to the probate of the said will dated November 3, 1942, alleging (1) that at the time of the alleged execution of the said will, the testatrix Encarnacion Neyra no longer possessed testamentary capacity; (2) that her thumb marks on said instrument had been procured by means of fraud by petitioner Trinidad Neyra, and that Encarnacion Neyra never intended to consider said document as will; (3) that the alleged will, dated November 3, 1942, had not been executed in the manner and form prescribed by law; and (4) that Encarnacion Neyra, since September 14, 1939, had executed a will naming as beneficiaries said oppositors and others, and that said will had never been revoked or amended in any manner whatsoever. On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the opposition. Subsequently, said oppositors filed a counter petition, asking for the probate of the first will executed by Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943, the legatees Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate of said will marked as Exhibit 16, and amended said opposition, on September 15, 1943, to which Teodora Neyra and the others filed a reply, on September 20, 1943. On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition mentioned above, said petitioner as well as the oppositors, presented evidence, testimonial and documentary. The witnesses presented by the petitioner Trinidad Neyra were Mons. Vicente Fernandez, Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A. Aldecoa, Atty. Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had acted as scrivener in the preparation of said will dated November 3, 1942. Teodora Neyra and the other oppositors also presented several witnesses, the principal among whom were Presentacion Blanco, Ceferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an alleged medical expert, and the oppositors Teodora Neyra and Pilar de Guzman themselves.

After considering the evidence, the lower court rendered a decree admitting to probate the will dated November 3, 1942; at the same time denying the probate of the will dated September 14, 1939. From said decision Teodora Neyra and the other oppositors appealed to the Court Appeals for the City of Manila, assigning several errors, which may be reduced to the following, to wit, the trial court erred (1) in finding that Encarnacion Neyra wanted to make a new will; (2) in declaring that there was reconciliation between Encarnacion Neyra and her sister Trinidad; (3) in accepting as satisfactory the evidence submitted by the petitioner; (4) in ignoring the evidence submitted by the oppositors; and (5) in not admitting to probate the will dated September 14, 1939. The evidence, testimonial and documentary, adduced during the trial of the case in the court below, has satisfactorily and sufficiently established the following facts:chanrob1es virtual 1aw library That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and several other relatives; that after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad Neyra, had serious quarrels, in connection with the properties left by their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of First Instance of Manila, concerning said properties (Exhibits 8 and 9): In the first case, filed on March 31, 1939, Trinidad Neyra and others demanded from Encarnacion Neyra Et. Al. the annulment of the sale of the property located at No. 366 Raon Street, Manila, and it was finally decided in favor of the defendants in the Court of First instance and in the Court of Appeals, on December 21, 1943 (G. R. No. 8162, Exhibit 9). In the second case, filed on October 25, 1939, Trinidad Neyra demanded from Encarnacion Neyra, one-half (1/2) of the property described therein, and one-half (1/2) of the rents, and the Court of First Instance decided in favor of the plaintiff, but at the same time awarded in favor of the defendant P727.77 under her counterclaim; and Trinidad Neyra again elevated the case to the Court of Appeals for Manila (G. R. No. 8075) Exhibit 8, which was decided, pursuant to the document of compromise marked as Exhibit D; and the petition for reconsideration filed therein still remains undecided. That Encarnacion Neyra, who had remained single, and who had no longer any ascendants, executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the "Congregacion de Religiosas de la Virgen Maria" and her other relatives named Teodora Neyra, Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will in favor of her only sister Trinidad Neyra, who had become her bitter enemy; that when the said will was brought to the attention of the authorities of said Congregation, after due deliberation and consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that in order to overcome the difficulties encountered by said religious organization in not accepting the generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about one week before her death, sent for one Ricardo Sikat, an attorney working in the Law Offices of Messrs. Feria and Lao, and gave him instructions for the preparation of a new will; that Attorney Sikat, instead of preparing a new will, in accordance with the express instructions given by Encarnacion Neyra merely prepared a draft in the form of a codicil, marked as Exhibit M, amending said will, dated September 14, 1939, again naming said religious organization, among others, as beneficiary, and said draft of a codicil was also forwarded to the authorities of said religious organization, for their consideration and acceptance.

In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addisons disease, and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez of the Quiapo Church to make confession, after which she expressed her desire to make a mass celebrated in her house at No. 366 Raon Street, City of manila, so that she might take holy communion, in view of her condition; that following the request of Encarnacion Neyra, Mons. Fernandez caused the necessary arrangements to be made for the celebration of holy mass in the house of Encarnacion Neyra, and as a matter of fact, on November 1, 1942, holy mass was solemnized in her house, Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said ceremony, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that after said religious ceremony had been terminated, Father Garcia talked to Encarnacion Neyra and advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch her sister Trinidad Neyra, who came at about @:30 that same afternoon; that on seeing one another, the two greeted each other in a most affectionate manner, and became reconciled; that the two had a long and cordial conversation, in the course of which the two sisters also talked about the properties left by their deceased father and their litigations which had reached the Court of Appeals for the City of Manila, and they agreed to have the said appeal dismissed, on the condition that the property involved therein, consisting of a small house and lot, should be given exclusively to Trinidad Neyra, on the condition that the latter should waive her claim for her share in the rents of said property, while under the administration of Encarnacion Neyra, and that the two should renounce their mutual claims against one another. It was also agreed between the two sisters to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said agreement, but Attorney Panis could come only in the afternoon of the following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of the document embodying their agreement, and other instructions relative to the disposition she wanted to make of her properties in her last will and testament; that Attorney Panis prepared said document of compromise or agreement marked as Exhibit D, as well as the new will and testament marked as Exhibit C, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express instructions given by Encarnacion Neyra, and said instruments were ready for signature on November 3, 1942; that in the afternoon of that day, November 3, 1942, Attorney Panis read said will and testament marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the presence of Fr. Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad Neyra, and others, after which he asked her if its terms were in accordance with her wishes, if she had anything else to add, or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said will were in accordance with her wishes and express instructions, she asked for the pad and the will Exhibit C and, with the help of a son of herein petitioner, placed her thumb mark at the foot of said will, in the presence of the three attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, after which the attesting witnesses signed at the foot of the document, in the presence of the testatrix Encarnacion Neyra, and of each and everyone of the other attesting witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra and several others were also present. On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died. Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the provision made in its favor by testatrix Encarnacion Neyra in the proposed codicil prepared by Atty. Ricardo Sikat, said decision could not be communicated to the testatrix, before her death. Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31, 1942, by

Encarnacion Neyra for the celebration of holy mass in her house, on November 1, 1942; that said mass was in fact solemnized in her house, on that date, in the course of which the testatrix Encarnacion Neyra took holy communion; that on the same day, after the mass, Encarnacion held a long conversation with Father Garcia, in the course of which, said priest advised her to have reconciliation with her sister Trinidad; and that said advise was accepted by Encarnacion. By the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to fetch her, and that in fact she came to the house of Encarnacion, at about 2:30 o clock in the afternoon that same day, November 1, 1942, with said Eustaquio Mendoza; that on seeing one another, Encarnacion and Trinidad Neyra greeted each other most affectionately, forgiving one another, after which they talked about the property left by their deceased father and the litigation pending between them; and the two sisters agreed to settle their case, which had been elevated to the Court of Appeals for the City of Manila, concerning a certain house and lot, on the understanding that said property should be given exclusively to Trinidad, and that the latter should renounce her claim against Encarnacion, for her share in the rents collected on said property, and, at the same time, Encarnacion renounced her claim for P727.77 against Trinidad; and at it was also agreed between the two sisters that Atty. Alejandro M. Panis should be called to prepare the necessary papers for the settlement of said case. Presentacion Blanco, a witness for the oppositors, also testified substantially to the foregoing facts. By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses, it has also been shown that Atty. Alejandro M. Panis came in the afternoon of the following day, November 2, 1942, and received instructions from Encarnacion Neyra, not only for the preparation of said agreement, but also for the preparation of a new will, and consequently Attorney Panis prepared said document of compromise and the will, dated November 3, 1942, which were both thumb marked, in duplicate, in the afternoon of that day, by Encarnacion Neyra, who was then of sound mind, as shown by her appearance and conversation, aided by a son of Trinidad Neyra, on her bed in the sala, in the presence of the attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and Atty. Alejandro M. Panis, who signed in the presence of the testatrix and of each other. Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion Neyra, and so was Trinidad Neyra. On November 4, 1942, due to a heart attack as a consequence of Addisions disease, perhaps, Encarnacion Neyra expired, at about 3 oclock in the morning. Oppositor Teodoro Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco, daughter of oppositor Maria Jacobo Vda. de Blanco, practically corroborated the testimony of the witnesses of the petitioner, with reference to the signing of documents, in the bedroom of Encarnacion Neyra, on November 3, 1942. Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified, however, that when the thumb mark of Encarnacion Neyra was affixed, as stated above, to the document of compromise in question, dated November 3, 1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as they were in the caida. But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed the

documents thumb marked by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and Presentacion Blanco. Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that Encarnacion Neyras thumb mark was affixed to the will, only in the morning of November 4, 1942, by Trinidad Neyra and Ildefonso del Barrio, when Encarnacion was already dead. The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of Addisons disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra. According to medical authorities, the cause or causes of the sleeping sickness, known as Addisons disease, are not yet fully known; that persons attacked by said disease often live as long as ten (10) years after the first attack, while others die after a few weeks only, and that as the disease progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250, 1252, 1253; MaCrae, Oslers Modern Medicine, 3d ed., Vol. V pp. 272-279). And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of 48, died on November 4, 1942, due to a heart attack, after an illness of about two (2) years. In connection with testamentary capacity, in several cases, this court has considered the testimony of witnesses, who had known and talked to the testators, more trustworthy than the testimony of alleged medical experts. Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of, and the persons who would naturally be supposed to have claims upon the testator, and to comprehend the manner in which the instrument will distribute his property among the objects of his bounty. (Bugnao v. Ubag, 14 Phil., 163.) . Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of a will, who stated that it tended to destroy mental capacity, was held not to affect the full possession of the mental faculties deemed necessary and sufficient for its execution. (Caguioa v. Calderon, 20 Phil., 400.) The testatrix was held to have been compos mentis, in spite of physicians testimony to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician that the deceased was suffering from diabetes and had been in a comatose condition for several days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the positive statement of several credible witnesses that he was conscious and able to understand what said to him and to communicate his desires. (Samson v. Corrales Tan Quintin, 44 Phil., 573.) Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will. (Amata v. Tablizo, 48 Phil., 485.) Where it appears that a few hours and also a few days after the execution of the will, the testator intelligently and intelligibly conversed with other persons, although lying down and unable to move or stand up unassisted, but could still effect the sale of property belonging to him, these circumstances show that the testator was in a perfectly sound mental condition at the time of executing the will. (Amata and Almojuela

v. Tablizo, 48 Phil., 485.) Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning and also at about 6 oclock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her and that they understood each other clearly, thus showing that the testatrix was really of sound mind, at the time of the signing and execution of the agreement and will in question. It may, therefore, be reasonably concluded that the mental faculties of persons suffering from Addisons disease, like the testatrix in this case, remains unimpaired, partly due to the fact, on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental faculties until the moments of their death. Judging by the authorities above cited, the conclusion made by the trial court that the testatrix Encarnacion Neyra was of sound mind and possessed of testamentary capacity, at the time of the execution of the will, cannot be properly disturbed. The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix thumb marked the will in question, on her bed, in the sala of the house, as they were allegedly in the caida. But it has been fully shown that the attesting witnesses were present at the time of the signing and execution of the agreement and will in question, in the sala, where the testatrix was lying on her bed. The true test is not whether they actually saw each other, at the time of the signing of the will, but whether they might have seen each other sign, had they chosen to do so; and the attesting witnesses actually saw it in this case. (Jaboneta v. Gustilo, 5 Phil., 541.) And the thumbmark placed by the testatrix on the will is equivalent to her signature. (Yap Tua v. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The oppositors as well as their principal witnesses are all interested parties, as said oppositors had been named legatees in the will dated September 14, 1939, but eliminated from the will dated November 3, 1942. On the other hand, the witnesses for the petitioner are all trustworthy men, who had absolutely no interest in the final outcome of this case. Two of them are ministers of the Gospel, while the three attesting witnesses are professional men of irreproachable character, who had known and seen and talked to the testatrix. Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have been no reconciliation between the two sisters, and that the thumb mark of Encarnacion Neyra was affixed to the document embodying the agreement, while she was sleeping, on November 3, 1942, in their presence; and that her thumb mark was affixed to the will in question, when she was already dead, in the morning of November 4, 1942, within their view, is preposterous, to say the least. Said testimony is contrary to common sense. It violates all sense of proportion. The oppositors and their witnesses could not have told the truth; they have testified to brazen falsehoods; and they are, therefor, absolutely unworthy of belief. And to the evidence of the oppositors is completely applicable the rule falsus in uno, falsus in omnibus. (Gonzalez v. Mauricio, 53 Phil., 728, 735.) . In the brief presented by counsel for the oppositors and appellants, to show the alleged improbability of the reconciliation of the two sisters, and the execution of the will, dated November 3, 1942, they have erroneously placed great reliance on the fact that up to October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on the common belief that the hatred of

relatives is the most violent. Dreadful indeed are the feuds of relatives, and difficult the reconciliation. But they have forgotten the fact that Encarnacion Neyra was a religious and pious woman instructed in the ancient virtues of Christian faith and hope and charity, and that it was godly to forgive and better still to forget. It was almost natural that there should have been reconciliation between the two sisters, Encarnacion and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole blood. The approach of imminent death must have evoked in her the tenderest recollections of childhood. And believing perhaps that her little triumphs had not always brought her happiness, and that she had not always been fair to her sister, who, in fact, had successively instituted two suits against her, to recover what was her due, and for which Encarnacion believed she must atone, she finally decided upon reconciliation, so that she might depart in peace. The record shows that, of the two, Encarnacion lived in great opulence, and that Trinidad had been demanding tenaciously her share; and as a Christian woman, Encarnacion must have known that no one has any right to enrich himself unjustly, at the expense of another. And it was, therefore, natural that Encarnacion should desire reconciliation with her sister Trinidad, and provide for her in her last will and testament. As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so many years and so well, it was also natural that she should make some provision for him, as gratituted is the noblest sentiment that springs from the heart. The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named therein, including principally her bitterest enemy of late, which is completely uncompatible with the will, dated September 14, 1939, may really seem strange and unusual; but, as it has been truly said, above the logic of the head is the feeling of the heart, always understand, as in the case of intuitive knowledge of eternal verity. As Encarnacion Neyra, felt the advent of immortality, she naturally wanted to follow "the path of the just, which is as the shining light that shineth more and more unto the perfect day," so that her memory may be blessed. As a Christian woman, she must have loved justice, mercy and truth and to follow the law, for this is the whole duty of man. In the present case, the court cannot find any reason or justification to alter the conclusions set forth in the decree appealed from. This court will not reverse any findings of fact by the trial court made upon conflicting testimony and depending largely upon the credibility of witnesses, who testified in the presence of trial judge, unless the court below failed to take into consideration some of material facts or circumstances, or to weigh accurately all of the material facts and circumstances presented to it for consideration. (Baltazar v. Alberto, 33 Phil., 336; Melliza v. Towle, 34 Phil., 345; Caragay v. Urquiza, 53 Phil., 72, 79; Garcia v. Garcia de Bartolome, 63 Phil., 419.) . After a careful consideration of the evidence and the law in this case, we find it legally impossible to sustain any of the errors assigned by the appellants. The judgment appealed from is, therefore, affirmed, with costs against the appellants. So ordered.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses. In the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf ( folio), but not in the margin of each page containing written matter.

[G.R. No. 13431. November 12, 1919. ] In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, v. ANASTACIA ABANGAN ET AL., opponents-appellants. 1. WILLS; ATTESTATION. 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. 2. ID.; ID; TESTATORS SIGNATURE. The testators signature is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator. 3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. 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 her will is written. On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangans will executed July, 1916. From this decision the opponents appealed. Said document, duly probated as Ana Abangans 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 testators 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 unnecessary; 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 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 testators last will, must be disregarded. As another ground for this appeal, it is alleged the records do not show that the testatrix 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-1787. August 27, 1948. ] Testacy of Sixto Lopez. JOSE S. LOPEZ v. AGUSTIN LIBORO, Oppositor-Appellant. SYLLABUS 1. WILLS; PAGING; PURPOSE; OMISSION OF PAGE NUMBER SUPPLIED BY OTHER MEANS OF IDENTIFICATION. The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan v. Abangan, 40 Phil., 476.) The omission to put a page number on a sheet, if that be necessary, may be supplied by other forms of identification more trustworthy than the conventional numeral words or characters. 2. ID.; EVIDENCE; WITNESSES, CREDIBILITY OF; CONTRADICTIONS ON INCIDENTS. contradictions in the testimony of the instrumental witnesses as are set out in the appellants brief are incidents, not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. Far from being an evidence of falsehood, the contradictions constitute an evidence of good faith. 3. ID.; SIGNATURE BY MARK. A statute requiring a will to be "signed" is satisfied if the signature is made by the testators mark. 4. ID.; EVIDENCE; ADMISSION OF FURTHER EVIDENCE AFTER PARTY HAS RESTED; DISCRETION OF COURT. It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. 5. ID.; ID.; ADMISSION OF FURTHER EVIDENCE AFTER MOTION FOR NONSUIT OF DEMURRER TO EVIDENCE; DISCRETION OF COURT. It is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. 6. ID.; ID.; EVIDENCE ALLOWABLE AFTER DIRECT PROOFS. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. v. Ylagan, 43 Phil., 393; U. S. v. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. 7. ID.; LANGUAGE; KNOWLEDGE OF TESTATOR NEED NOT BE EXPRESSED IN WILL; PROOF "ALIUNDE." There is no statutory requirement that the testators understanding of the language used in the will be expressed therein. It is a matter that may be established by proof aliunde.

In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the deceased never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testators sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the signature of the testator was procured by fraud or trick. In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required by law." To this objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the vigorous objection of the oppositor."cralaw virtua1aw library The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal defect. The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan v. Abangan, 40 Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numeral words or characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction for the disposition of the makers property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet can not by any possibility be taken for other than page one. Abangan v. Abangan, supra, and Fernandez v. Vergel de Dios, 46 Phil., 922 are decisive of this issue. Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses is assailed under this heading. On the merits we do not believe that the appellants contention deserves serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the appellants brief are incidents not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. "Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of witnesses generally occur in the details of a certain incident, after a long series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in

relating their impressions they should not agree in the minor details; hence, the contradictions in their testimony." (People v. Limbo, 49 Phil., 99.) The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testators place might have directed someone else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testators mark. (De Gala v. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.) With reference to the second assignment of error, we do not share the opinion that the trial court committed an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence. It is within the discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon the minutes or signed. (64 C. J., 164.) In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. v. Ylagan, 43 Phil., 393; U. S. v. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered. (I Morans Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testators knowledge of Spanish had not been deliberate. It was due to a misapprehension or oversight. Although alien to the second assignment of error, the appellant impugns the will for its silence on the testators understanding of the language used in the testament. There is no statutory requirement that such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales v. Laurel, 46 Phil., 781, in which the probate of a will written in Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."cralaw virtua1aw library The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.

[G.R. No. L-5826. April 29, 1953. ] Testate estate of the late VICENTE CAGRO. JESUSA CAGRO v. PELAGIO CAGRO, ET AL SYLLABUS 1. WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM OF ATTESTATION CLAUSE, IS FATAL DEFECT. Inasmuch as 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, the will is fatally defective. 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. This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February 14, 1949. The main objection insisted upon by the appellants is that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. 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. Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with costs against the petitioner and appellee.

G.R. Nos. L-3272-73

November 29, 1951

MANUEL GONZALES vs. MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee; ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-appellants. SYLLABUS 1. WILLS; ATTESTATION CLAUSE MADE BY TESTATOR AND SIGNED BY WITNESSES, SUBSTANTIALLY COMPLIES WITH LAW. An attestation clause made by the testator himself more than by the instrumental witnesses, but signed by the latter right under the signature of the testator, substantially complies with the requirements of law. 2. ID.; ID.; STATEMENT OF SHEETS OR PAGES IN BODY OF WILL HELD SUFFICIENT WHEN CONSIDERED IN CONNECTION WITH ATTESTATION CLAUSE. The statement in the penultimate paragraph of the will as to the number of the sheets or pages used is sufficient attestation which may be considered in conjunction with the last paragraph which was herein held as the attestation clause. The law does not require the attestation to be contained in a single clause. 3. ID.; TESTAMENTARY CAPACITY; TESTIMONY OF ATTENDING PHYSICIAN PREVAILS OVER THAT OF TESTAMENTARY WITNESSES. Where the family physician attended the testatrix during her last illness and saw her on the day when the alleged document of revocation was executed, the testimony of the attesting witnesses tending to imply that the testatrix was of sound mind at the time said document was executed, cannot prevail over the contrary testimony of the attending physician. On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix) died at the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales, Leopoldo Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her is estimated at P150,000.chanroblesvirtualawlibrary chanrobles virtual law library On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition (Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on November 16, 1942 (Exhibit B-Manuel Gonzales), devising to Manuel Gonzales the greater portion of the estate, without impairing the legitimes of the other children.chanroblesvirtualawlibrary chanrobles virtual law library On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945 (Exhibit 1Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the estate, without impairing the legitimes of the other children.chanroblesvirtualawlibrary chanrobles virtual law library In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity, they had been revoked by the testatrix in an instrument executed by her on November 18, 1948 (Exhibit 2-Alejandro and Juan Gonzales), with the result that her estate should be distributed as if she died intestate.chanroblesvirtualawlibrary chanrobles virtual law library With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one or the other instruments tending to negative their respective positions.chanroblesvirtualawlibrary chanrobles virtual law library

After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following dispositive pronouncements: All facts considered in the light of the evidence presented and in the manner in which the witnesses testified the court concludes and holds: chanrobles virtual law library First: That Exhibit B - Manuel Gonzales, though validly executed on November 16, 1942, was revoked by Exhibit 1-Manolita G. Carungcong in accordance with the provisions of section 623 of the Code of Civil Procedure.chanroblesvirtualawlibrary chanrobles virtual law library Second: That Exhibit 2 - Alejandro and Juan Gonzales being executed without the knowledge and testamentary capacity of the testatrix and being contrary to the provisions of section 618 of the Code of Civil Procedure, the said document is hereby declared null and void.chanroblesvirtualawlibrary chanrobles virtual law library Third: That Exhibit 1 - Manolita G. Carungcong having been executed in accordance with law the same is hereby declared as the true and last will and testament of the deceased Manuela Ibarra Viuda de Gonzales, and said will is hereby admitted probate. From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to pay the proportionate share of the printing cost of the record on appeal.chanroblesvirtualawlibrary chanrobles virtual law library In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the following form and tenor: IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng PITONG (7) dahon o pagina na may bilang na sunud-sunod at ang bawa't dahon o pagina ay mayroong tunay kong lagda o firma, gayon din ang lahat ng aking saksi o testigos.chanroblesvirtualawlibrary chanrobles virtual law library SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite, Filipinas ngayong ika-5 ng Mayo ng taong 1945, na nakaharap dito sa ating paglagda o pagfirma ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang kaliwa ng lahat at bawa't dahon o pagina nitong testamento kong ito sa harap ng lahat at bawa't isang saksi o testigos at ang lahat at bawa't isa naman sa kanila ay nangagsilagda o nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at bawa't isa sa kanila, at ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat at bawa't isa sa mga dahon o pagina nitong aking testamento. (Sgd.) MANUELA Y. VDA. DE GONZALES MANUELA IBARRA VDA. DE GONZALES Mga Saksi o Testigos: (Sgd.) BIENVENIDO DE LOS REYES (Sgd.) TAHIMIK T. SAYOC (Sgd.) LUIS GAERLAN

It is contended for the appellants that this will does not contain any attestation clause; that, assuming the concluding paragraph to be the attestation clause, it is not valid because it is the act of the testatrix and not of the witnesses, and because it does not state the number of sheets or pages of the will.chanroblesvirtualawlibrary chanrobles virtual law library In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May, 1951 * we sustained, finding a precedent in Aldaba vs. Roque, 43 Phil., 378, an attestation clause made by the testator and forming part of the body of the will. Through Mr. Justice Bautista, we held: The clause above quoted is the attestation clause referred to in the law which, in our opinion, substantially complies with its requirements. The only apparent anomaly we find is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses.chanroblesvirtualawlibrary chanrobles virtual law library Instrumental witnesses, as defined by Escriche in his Diccionario Razobada de Legislacion, y Jurisprudencia, Vol. 4, p. 1115, is on who takes part in the execution of an instrument or writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the three instrumental witnesses have signed the will immediately under the signature of the testator, shows that they have in fact attested not only to the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause.chanroblesvirtualawlibrary chanrobles virtual law library The attestation clause in question bears also similarity with the attestation clause in the will involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation clause formed part of the body of the will and its recital was made by the testatrix herself and was signed by her and by the three instrumental witnesses. In upholding the validity of the will, the court said: chanrobles virtual law library In reality, it appears that it is the testatrix who makes the declaration about the points in the last paragraph of the will; however, as the witnesses, together with the testatrix, have signed the said declaration, we are of the opinion and so hold that the words above quoted of the testament constitute a sufficient compliance with the requirements of Act No. 2465. Of course three of the Justices of this Court concurred in the result, "in the possibility that the testator in the present case, or the person or persons who prepared the will had relied upon the ruling laid down in the case of Aldaba vs. Roque, supra, and that it would now be unfair to reject the present will when in its preparation a ruling of this Court has been followed." But the case at bar still falls within this view, the will (Exhibit 1Manolita G. Carongcong) having been executed on May 5, 1945.chanroblesvirtualawlibrary chanrobles virtual law library The attestation clause contained in the body of the will being thus valid, the statement in the penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is sufficient attestation which may be considered in conjunction with the last paragraph. It is significant that the law does not require the attestation to be contained in a single clause. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially when the authenticity of the will is not assailed, as in this case.chanroblesvirtualawlibrary chanrobles virtual law library The result reached in respect of the sufficiency of the will (Exhibit 1-Manolita G. Carongcong) necessarily disposes of the contention of the appellant Manuel Gonzales that the trial court erred in not admitting to

probate the will (Exhibit B-Manuel Gonzales), since the latter will must be considered revoked by the subsequent will (Exhibit 1-Manolita G. Carongcong).chanroblesvirtualawlibrary chanrobles virtual law library What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1Manolita G. Carongcong) has been revoked by the testatrix in the instrument of November 18, 1948 (Exhibit 2-Alejandro and Juan Gonzales) which provides as follows: Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa ciudad ng Rizal, may mahusay at wastong pag-iisip at mabuting pagtatanda, sa pamamagitan ng kasulatang ito at bilang huling kapasiyahan ay sinasaysay ko ito at ipinahahayag sa ngayon sa alin mang testamento o huling habilin na napirmahan kong una sa kasulatang ito ay pinawawalan ko ng saysay at kabuluhang lahat pagkat hindi iyong tunay kong kalooban ngayon.chanroblesvirtualawlibrary chanrobles virtual law library Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito 1948, dito sa ciudad ng Pasay. Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the testatrix lacked the testamentary capacity when she allegedly executed the instrument of revocation, and their contention was sustained by the trial court. We have examined the record and found no valid reason for reversing the finding of said court which had the benefit of observing and hearing the witnesses testify. Upon the other hand, the following considerations amply support the appealed decision:.chanroblesvirtualawlibrary chanrobles virtual law library 1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital authorities (Exhibit E-Manuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged instrument of revocation was executed by her, the testatrix was in a comatose and unconscious state and could not talk or understand. The following is the testimony of Dr. Leveriza portraying the physical condition of the testatrix up to November 18, 1948: While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert, the latters's testimony remains uncontradicted. The fact that the testimony of the attesting witnesses tends to imply that the testatrix was of sound mind at the time the alleged instrument of revocation was executed, cannot prevail over the findings of the attending physician, Dr. Leveriza, because even Dr. Ramon C. Talavera (an attesting witness) testified that although he had not examined the testatrix, her case appeared serious; that he had a hunch that "they were taking advantage of the last moment of the deceased and they were trying to make me an instrument in the accomplishment of their aims," and that he had the idea that the testatrix was in doubtful condition because he "could only judge from the people going there.".chanroblesvirtualawlibrary chanrobles virtual law library It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have ordered to "let her sit on bed or on chair and let her turn on her side sometime." However, Dr. Leveriza has given the reason for this prescription, namely, to avoid hypostatic pneumonia.chanroblesvirtualawlibrary chanrobles virtual law library In support of the contention that the testimony of the attesting witnesses should be given more credence than the opinion of an expert witness, reliance is placed on the case of Caguioa vs. Calderon, 20 Phil., 400;

Bagtas vs. Paguio, 22 Phil., 227; Galvez vs. Galvez, 26 Phil., 243; Samson vs. Corrales Tan Quintin, 44 Phil., 573; Amata vs. Tablizo, 48 Phil., 485, and Neyra vs. Neyra, 42, Off. Gaz., 2790 ** These cases are notably distinguishable from the case at bar. The former refer to situations in which the doctors were not in a position to certify definitely as the testamentary capacity of the testators at the time the wills therein involved were executed, because they had not observed the testators on said dates or never saw them; whereas the case now before us involves a family physician who attended the testatrix during her last illness and saw her on the day when the alleged instrument of revocation was executed.chanroblesvirtualawlibrary chanrobles virtual law library 2. We cannot help expressing our surprise at the fact that the instrument of revocation was allegedly executed on November 18, 1948, when, according to the testimony of Jose Padilla, the latter was asked by the testatrix to prepare the necessary document as early as in the month of May, 1948, and reminded about it for the second time weeks before November 1, 1948, and for the third time several days before the latter date (November 1, 1948). The first excuse given by Jose Padilla for the delay is that he was busy and the children of the testatrix had certain disputes which he tried to settle. The second excuse is that he was not able to secure soon enough from Alejandro Gonzales, Jr. some documents of transfer which he wanted to examine in connection with the preparation of the desired instrument of revocation. We are inclined to state that these excuses are rather poor. If Jose Padilla was too busy to give attention to the matter, he could have very easily informed the testatrix and the latter, if really desirous of revoking her former wills, would have employed another to prepare the requisite document. The fact that there were disputes between the children of the testatrix certainly was not an obstacle to the accomplishment of the wish of the testatrix. Neither was it necessary to examine the documents relating to the properties of the testatrix, since the instrument of revocation could be prepared without any reference to the details of her estate. Indeed, the instrument (Exhibit 2-Alejandro and Juan Gonzales) is couched in general terms.chanroblesvirtualawlibrary chanrobles virtual law library 3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is hard to rule that the testatrix had sufficient testamentary capacity at the time of the execution of the alleged instrument of revocation. In the first place, Constancio Padilla (brother of Jose Padilla) merely asked the testatrix, first, if she was agreeable to the instrument of revocation prepared by Jose Padilla, and secondly, if she was agreeable to the signing of said document by Constancio Padilla, to which two questions the testatrix allegedly answered "Yes". It is not pretended that the testatrix said more about the matter or gave any further instruction. The attesting witnesses were not introduced to the testatrix, and their presence was not even mentioned to her. it is obviously doubtful whether the testatrix understood the meaning and extent of the ceremony. Assuming that the testatrix answered in the affirmative the two questions of Constancio Padilla, without more, we cannot fairly attribute to her manifestation of her desire to proceed, right then and there, with the signing of the questioned instrument. In other words, contrary to the recital of the attestation clause, the testatrix cannot rightly be said to have published her last will to the attesting witnesses.chanroblesvirtualawlibrary chanrobles virtual law library The appealed decision is, therefore, affirmed without costs. So ordered.chanroblesvirtualawlibrary

[G.R. NO. 122880 : April 12, 2006] FELIX AZUELA, Petitioner, v. COURT OF APPEALS 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 lahat at bawa't dahon ng kasulatan ito. EUGENIA E. IGSOLO address: 500 San Diego St. Sampaloc, Manila Res. Cert. No. A-7717-37 Issued at Manila on March 10, 1981. QUIRINO AGRAVA address: 1228-Int. 3, Kahilum Pandacan, Manila Res. Cert. No. A-458365 Issued at Manila on Jan. 21, 1981 LAMBERTO C. LEAO address: Avenue 2, Blcok 7, Lot 61, San Gabriel, G.MA., Cavite Res. Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981 JUANITO ESTRERA address: City Court Compound, City of Manila Res. Cert. No. A574829 Issued at Manila on March 2, 1981.

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila. (Sgd.) PETRONIO Y. BAUTISTA Doc. No. 1232 ; NOTARIO PUBLIKO Page No. 86 ; Until Dec. 31, 1981 Book No. 43 ; PTR-152041-1/2/81-Manila Series of 1981 TAN # 1437-977-81 The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause. 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 decedent.2 Geralda Castillo claimed that the will is a forgery, and that the true 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 and usurpation of real property, all centering on petitioner's right to occupy the properties of the decedent.3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 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, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5 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 acknowledged. These twin arguments are among the central matters to this petition. 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 (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will x x x with the end in view of giving the testator more freedom in expressing his last wishes;"7 and from this perspective, rebutted oppositor's arguments that the will was not properly executed and attested to in accordance with law. After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern 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 will with the end in view of giving the testator more freedom in expressing his last wishes, this Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law. On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga Saksi":

"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 v. Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] v. 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 v. 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: 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 v. Navas L. Sioca, 43 Phil., 405; Gumban v. Gorcho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 481; Echevarria v. 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 v. Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the: 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. Cagro v. Cagro36 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. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed and sworn 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, 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. WHEREFORE, the petition is DENIED. Costs against petitioner.