Nenita de Vera SUROZA vs. Judge Reynaldo P. HONRADO and Evangeline YUIP O A.!. No.

"#"$% &I' De(e)*er +,' +,-+ Mauro Suroza, a corporal in the 45th Infantry of the US Army (Philippine Scouts) married Marcelina Salvador ut they !ere childless" #o!ever, they reared a oy named A$apito !ho used the surname Suroza and !ho considred them as parents as sho!n in his marria$e contract !ith %enita de &era" 'hen Mauro died, Marcelina, as a veteran(s !ido!, ecame a pensioner of the )ederal *overnment" A$apito and %enita e$ot a child named +ilia and after!ards, A$apito also ecame a soldier" #o!ever, he !as disa led and his !ife !as appointed as his $uardian !hen he !as declared an incompetent" In connection to this, a !oman named Arsenia de la ,ruz (apparently a $irlfriend of A$apito) !anted also to e his $uardian ho!ever the court confirmed %enita(s appointment as $uardian of A$apito" -he spouses Antonio Sy and #ermo$ena -alan e$ot a child named Marilyn Sy, !ho !as delivered to Marcelina Salvador Suroza !ho rou$ht her up as a supposed dau$hter of A$apito and as her $randdau$hter" Marilyn used the surname Suroza and stayed !ith Marcelina ut !as not le$ally adopted y A$apito" Marcelina, ein$ a veteran(s !ido! accumulated some cash in t!o an.s" She e/ecuted a notarial !ill !hich is in 0n$lish and !as thum mar.ed y her for she !as illiterate" In that !ill, Marcelina e1ueathed all her estate to Marilyn" After her death, Marina Pa2e (alle$ed to e a laundry!oman of Marcelina and the e/ecutri/ in her !ill) filed a petition for pro ate of Marcelina(s alle$ed !ill" As there !as no opposition, 3ud$e #onrado appointed Marina as administrati/ and su se1uently, issued t!o orders directin$ the t!o an.s to allo! Marina to !ithdra! from the savin$s of Marcelina and Marilyn Suroza and re1uirin$ the custodian of the pass oo.s to deliver them to Marina" Upon motion of Marina, 3ud$e #onrado issued another order instructin$ the sheriff to e2ect the occupants of the testatri/( house amon$ !hom !as %enita and to place Marina in possession thereof" %enita !as then alerted to the e/istence of the testamentary proceedin$ hence, she and other occupants filed a motion to set aside the order e2ectin$ them, alle$in$ that the decedent(s son A$apito !as the sole heir of the deceased4 that he has a dau$hter named +ilia4 that %enita !as A$apito(s $uardian4 and that Marilyn !as not A$apito(s dau$hter nor the decedent(s $randdau$hter" +ater, they 1uestioned the pro ate court(s 2urisdiction to issue the e2ectment order" In spite of such fact, 3ud$e #onrado issued on order pro atin$ Marcelina(s supposed !ill !herein Marilyn !as the instituted heiress" %enita filed in the testate case an omni us petition 5to set aside proceedin$s, admit opposition !ith counter petition for administration and preliminary in2unction6 reiteratin$ that Marilyn !as a stran$er to Marcelina4 that the !ill !as not duly e/ecuted and attested4 and that the thum mar.s of the testatri/ !ere procured y fraud or tric." )urther, that the institution of Marilyn as heir is void ecause of the preterition of A$apito and that Marina !as not 1ualified to act as e/ecutri/" %ot contented !ith her motions, %enita filed an opposition to the pro ate of the !ill and a counter7petition !hich !as ho!ever, dismissed" Instead of appealin$, %enita filed a case to annul the pro ate proceedin$s !hich !as also dismissed" #ence, this complaint" Whether or not a disciplinary action should be taken against respondent judge for having admitted a will, which on its face is void. 8isciplinary action should e ta.en a$ainst respondent 2ud$e for his improper disposition of the testate case !hich mi$ht have resulted in a miscarria$e of 2ustice ecause the decedent(s le$al heirs and not the instituted heiress in the void !ill should have inherited the decedent(s estate" Inefficiency implies ne$li$ence, incompetence, i$norance and carelessness" A 2ud$e !ould e ine/cusa ly ne$li$ent if he failed in the performance of his duties that dili$ence, prudence and circumspection !hich the la! re1uires in the rendition of any pu lic service" In this case, respondent 2ud$e, on perusin$ the !ill and notin$ that it !as !ritten in 0n$lish and !as thum mar.ed y an o viously illiterate testatri/, could have readily perceived that the !ill is void"

Payad vs. .olentino /.R. No. 0""1-. January +1' +,2$ &ictorio Payad filed a petition for the pro ate of the !ill of the decedent +eoncia -olentino" -his !as opposed y A1uilina -olentino, averrin$ that said 'ill !as made only after the death of the testatri/" -he lo!er court denied the pro ate of the !ill on the $round that the attestation clause !as not in conformity !ith the re1uirements of the la! since it !as not stated therein that the testatri/ caused Atty" Almario to !rite her name at her e/press direction" #ence, this petition" Was it necessary that the attestation clause state that the testatrix caused Atty. Almario to write her name at her express direction? -he evidence of record esta lishes the fact the +eoncia -olentino, assisted y Attorney Almario, placed her thum mar. on each and every pa$e of the 1uestioned !ill and that said attorney merely !rote her name to indicate the place !here she placed said thum mar." In other !ords Attorney Almario did not si$n for the testatri/" She si$ned y placin$ her thum mar. on each and every pa$e thereof" 9A statute re1uirin$ a !ill to e :si$ned: is satisfied if the si$nature is made y the testator:s mar."9 (;uoted y this court from <= >" ," +", p" ??@4 8e *ala vs" *onzales and Ana, 5B Phil", ?C4, ?C=") It is clear, therefore, that it !as not necessary that the attestation clause in 1uestion should state that the testatri/ re1uested Attorney Almario to si$n her name inasmuch as the testatri/ si$ned the !ill in 1uestion in accordance !ith la!" SourceD httpDEE2ayandes" lo$spot"comE<C??ECFEpayad7vs7tolentino7$r7no74<<5=72anuary"html

In t3e !atter o4 t3e 5ill o4 Antero !er(ado' de(eased' Rosario /AR IA' vs. Juliana 6A UES.A' et al /.R. No. 6%0#$7' Nove)*er ",' +,1+ A !ill !as e/ecuted y Antero Mercado !herein it appears that it !as si$ned y Atty" )lorentino 3avi!e !ho !rote the name of Antero" -he testator !as alle$ed to have !ritten a cross immediately after his name" -he ,ourt of )irst Instance found that the !ill !as valid ut the ,ourt of Appeals reversed the lo!er court(s decision holdin$ that the attestation clause failedD ?) to certify that the !ill !as si$ned on all the left mar$ins of the three pa$es and at the end of the !ill y Atty" 3avier at the e/press re1uest of the testator in the presence of the testator and each and every one of the !itnesses4 <) to certify that after the si$nin$ of the name of the testator y Atty" 3avier at the former(s re1uest said testator has !ritten a cross at the end of his name and on the left mar$in of the three pa$es of !hich the !ill consists and at the end thereof B) to certify that the !itnesses si$ned the !ill in all the pa$es thereon in the presence of the testator and of each other" #ence, this appeal" Whether or not the attestation clause is valid. -he attestation clause is fatally defective for failin$ to state that Antero Mercado caused Atty" 3avier to !rite the testator(s name under his e/press direction, as re1uired y section ?F= of the ,ode of ,ivil Procedure" It is not here pretended that the cross appearin$ on the !ill is the usual si$nature of Antero Mercado or even one of the !ays y !hich he si$ned his name" After mature reflection, the S, is not prepared to li.en the mere si$n of the cross to a thum mar. and the reason is o vious" -he cross cannot and does not have the trust!orthiness of a thum mar."

8arut vs. a*a(ungan' /.R. 6%$-"1 &e*riary +1' +,+" Pedro Garut applied for the pro ate of the !ill of Maria Salomon" It is alle$ed in the petition that testatri/ died on %ov" ?HC= in Sinait, Ilocos Sur leavin$ the !ill dated March B, ?HC@" -he said !ill !as !itnessed y B persons" )rom the terms it appears that the petitioner received a lar$er part of decedent:s property" After this disposition, the testatri/ revo.ed all other !ills and stated that since she is una le to read nor !rite, the !ill !as read to her and that she has instructed Severino A$apan, one of the !itnesses to si$n her name in her ehalf" -he lo!er court ruled that the !ill is not entitled to pro ate on the sole $round that the hand!ritin$ of the person !ho si$ned the name of the testatri/ does not appear to e that of A$apan ut that of another !itness" Whether or not a will's validity is affected when the person instructed by a testator to write his name did not sign his name %o, it is immaterial !ho !rote the name of the testator provided it is !ritten at her re1uest and in her present, and in the presence of the !itnesses" -his is the only re1uirement under Sec" F?= of the ,ivil ,ode of procedure at that time"

I(asiano v. I(asiano' ++ S RA 0"" 9 Dela uesta ,elso Icasiano filed a petition for the allo!ance and admission to pro ate of the alle$ed !ill of 3osefa &illacorte, and for his appointment as e/ecutor thereof" %atividad and 0nri1ue Icasiano, a dau$hter and son of the testatri/, filed their opposition thereto" 8urin$ the course of the trial, on ?H March ?H5H, ,elso, started to present his evidence" Gut later, on ? 3une ?H5H, he then filed an amended and supplemental petition, alle$in$ that the decedent had left a !ill e/ecuted in duplicate and !ith all the le$al re1uirements, and that he !as su mittin$ the duplicate to the court, !hich he found only on <F May ?H5H" %atividad and 0nri1ue filed their opposition, ut the !ill and its duplicate !as admitted to pro ate y the trial court" #ence, this appeal y the oppositors" Appositors7appellants (%atividad and 0nri1ue) in turn introduced e/pert testimony to the effect that the si$natures of the testatri/ in the duplicate are not $enuine, nor !ere they !ritten or affi/ed on the same occasion as the ori$inal, and further aver that $rantin$ that the documents !ere $enuine, they !ere e/ecuted throu$h mista.e and !ith undue influence and pressure ecause the testatri/ !as deceived into adoptin$ as her last !ill and testament the !ishes of those !ho !ill stand to enefit from the provisions of the !ill, as may e inferred from the facts and circumstances surroundin$ the e/ecution of the !ill and the provisions and dispositions thereof, !here y proponents7 appellees stand to profit from properties held y them as attorneys7 in7fact of the deceased and not enumerated or mentioned therein, !hile oppositors7appellants are en2oined not to loo. for other properties not mentioned in the !ill, and not to oppose the pro ate of it, on penalty of forfeitin$ their share in the portion of free disposal" Was the trial court correct in admitting the will and its duplicate to probate given the allegations of forgery of the testator s signature, or that the will was executed under circumstances constituting fraud and undue influence and pressure? (Not raised by the appellants in the case but discussed by the Court and in Sirs book) Is the failure of one of the witnesses to sign a page of the will fatal to its validity? -he Supreme ,ourt dismissed the appeal, holdin$ that oth the !ill and its duplicate are valid in all respects" An the alle$ations of for$ery, fraud and undue influenceD -he ,ourt is satisfied that all the re1uisites for the validity of a !ill have een complied !ith" -he opinion of a hand!ritin$ e/pert tryin$ to prove for$ery of the testatri/:s si$nature failed to convince the ,ourt, not only ecause it is directly contradicted y another e/pert ut principally ecause of the paucity of the standards used y him (only three other si$natures), considerin$ the advanced a$e of the testatri/, the evident varia ility of her si$nature, and the effect of !ritin$ fati$ue" Similarly, the alle$ed sli$ht variance in lueness of the in. in the admitted and 1uestioned si$natures does not appear relia le, considerin$ that standard and challen$ed !ritin$s !ere affi/ed to different .inds of paper, !ith different surfaces and reflectin$ po!er" An the !hole, the testimony of the oppositor:s e/pert is insufficient to overcome that of the notary and the t!o instrumental !itnesses as to the !ill(s e/ecution, !hich !ere presented y ,elso durin$ the trial" %or is there ade1uate evidence of fraud or undue influence" -he fact that some heirs are more favored than others is proof of neither" 8iversity of apportionment is the usual reason for ma.in$ a testament4 other!ise, the decedent mi$ht as !ell die intestate" -he testamentary disposition that the heirs should not in1uire into other property and that they should respect the distri ution made in the !ill, under penalty of forfeiture of their shares in the free part, do not suffice to prove fraud or undue influence" -hey appear motivated y the desire to prevent prolon$ed liti$ation !hich, as sho!n y ordinary e/perience, often results in a sizea le portion of the estate ein$ diverted into the hands of non7 heirs and speculators" 'hether these clauses are valid or not is a matter to e liti$ated on another occasion" It is also !ell to note that fraud and undue influence are mutually repu$nant and e/clude each other4 their 2oinin$ as $rounds for opposin$ pro ate sho!s a sence of definite evidence a$ainst the validity of the !ill"

A*angan v. A*angan' 0# P3il 07$' AVAN ENA An Septem er ?H, ?H?@, ,)I of ,e u admitted to pro ate Ana A an$an:s !ill e/ecuted 3uly, ?H?F" )rom this decision the opponents appealed" -he !ill consists of < sheets" -he first contains all the disposition of the testatri/, duly si$ned at the ottom y Martin Montal an (in the name and under the direction of the testatri/) and y three !itnesses" -he follo!in$ sheet contains only the attestation clause duly si$ned at the ottom y the three instrumental !itnesses" %either of these sheets is si$ned on the left mar$in y the testatri/ and the three !itnesses, nor num ered y letters" -hese omissions, accordin$ to appellants: contention, are defects !here y the pro ate of the !ill should have een denied" Whether or not the will was duly admitted to probate. I0S" In re1uirin$ that each and every sheet of the !ill e si$ned on the left mar$in y the testator and three !itnesses in the presence of each other, Act %o" <F45 evidently has for its o 2ect the avoidance of su stitution of any of said sheets !hich may chan$e the disposition of the testatri/" Gut !hen these dispositions are !holly !ritten on only one sheet (as in the instant case) si$ned at the ottom y the testator and three !itnesses, their si$natures on the left mar$in of said sheet are not anymore necessary as such !ill e purposeless" In re1uirin$ that each and every pa$e of a !ill must e num ered correlatively in letters placed on the upper part of the sheet, it is li.e!ise clear that the o 2ect of Act %o" <F45 is to .no! !hether any sheet of the !ill has een removed" Gut, !hen all the dispositive parts of a !ill are !ritten on one sheet only, the o 2ect of the statute disappears ecause the removal of this sin$le sheet, althou$h unnum ered, cannot e hidden" In a !ill consistin$ of t!o sheets the first of !hich contains all the testamentary dispositions and is si$ned at the ottom y the testator and three !itnesses and the second contains only the attestation clause and is si$ned also at the ottom y the three !itnesses, it is not necessary that oth sheets e further si$ned on their mar$ins y the testator and the !itnesses, or e pa$ed" -he o 2ect of the solemnities surroundin$ the e/ecution of !ills is to close the door a$ainst ad faith and fraud, to avoid su stitution of !ills and testaments and to $uaranty their truth and authenticity" -herefore the la!s on this su 2ect should e interpreted in such a !ay as to attain these primordal ends" Gut, on the other hand, also one must not lose si$ht of the fact that it is not the o 2ect of the la! to restrain and curtail the e/ercise of the ri$ht to ma.e a !ill" So !hen an interpretation already $iven assures such ends, any other interpretation !hatsoever, that adds nothin$ ut demands more re1uisites entirely unnecessary, useless and frustative of the testator:s last !ill, must e disre$arded"

.estate Estate o4 agro vs. agro' /.R. 6%1-"$ -he case is an appeal interposed y the oppositors from a decision of the ,)I of Samar !hich admitted to pro ate a !ill alle$edly e/ecuted y &icente ,a$ro !ho died in Pam u2an, Samar on )e " ?4, ?H4H" -he appellants insisted that the !ill is defective ecause the attestation !as not si$ned y the !itnesses at the ottom althou$h the pa$e containin$ the same !as si$ned y the !itnesses on the left hand mar$in" Petitioner contended that the si$natures of the B !itnesses on the left hand mar$in conform su stantially to la! and may e deemed as their si$natures to the attestation clause" Whether or not the will is valid 'ill is not valid" -he attestation clause is a memorandum of the facts attendin$ the e/ecution of the !ill" It is re1uired y la! to e made y the attestin$ !itnesses and it must necessarily ear their si$natures" An unsi$ned attestation clause cannot e considered as an act of the !itnesses since the omission of their si$natures at the ottom ne$atives their participation" Moreover, the si$natures affi/ed on the let hand mar$in is not su stantial conformance to the la!" -he said si$natures !ere merely in conformance !ith the re1uirement that the !ill must e si$ned on the left7hand mar$in of all its pa$es" If the attestation clause is unsi$ned y the B !itnesses at the ottom, it !ould e easier to add clauses to a !ill on a su se1uent occasion and in the a sence of the testator and any or all of the !itnesses" -he pro ate of the !ill is denied" SourceD httpDEEla!sandfound" lo$spot"comE<C?BEC?Eca$ro7v7ca$ro7di$est"html

Nera v. Ri)ando ' /.R. 6%1,7+ &e*ruary "7' +,++ :;.est o4 Presen(e;< At the time the !ill !as e/ecuted, in a lar$e room connectin$ !ith a smaller room y a door!ay !here a curtain han$s across, one of the !itnesses !as in the outside room !hen the other !itnesses !ere attachin$ their si$natures to the instrument" -he trial court did not consider the determination of the issue as to the position of the !itness as of vital importance in determinin$ the case" It a$reed !ith the rulin$ in the case of 3a oneta v" *ustillo that the alle$ed fact ein$ that one of the su scri in$ !itnesses !as in the outer room !hile the si$nin$ occurred in the inner room, !ould not e sufficient to invalidate the e/ecution of the !ill" -he ,A deemed the !ill valid" Whether or not the subscribing witness was able to see the testator and other witnesses in the act of affixing their signatures. I0S" -he ,ourt is unanimous in its opinion that had the !itnesses een proven to e in the outer room !hen the testator and other !itnesses si$ned the !ill in the inner room, it !ould have invalidated the !ill since the attachin$ of the si$natures under the circumstances !as not done :in the presence: of the !itnesses in the outer room" -he line of vision of the !itness to the testator and other !itnesses !as loc.ed y the curtain separatin$ the rooms" -he position of the parties must e such that !ith relation to each other at the moment of the attachin$ the si$natures, they may see each other si$n if they chose to" In the 3a oneta case, the true test of presence is not !hether or not they actualy sa! each other si$n ut !hether they mi$ht have seen each other si$n if they chose to doso considerin$ their physical, mental condition and position in relation to each other at the moment of the inscription of the si$nature" SourceD httpDEEla!sandfound" lo$spot"comE<C?BEC?Enera7v7rimando7di$est"html

ru= v. Villasor' /.R. 6%2""+2 Nove)*er "$' +,72 -he ,)I of ,e u allo!ed the pro ate of the last !ill and testament of the late &alenti ,ruz" #o!ever, the petitioner opposed the allo!ance of the !ill alle$in$ that it !as e/ecuted throu$h fraud, deceit, misrepresentation, and undue influence" #e further alle$ed that the instrument !as e/ecuted !ithout the testator havin$ een informed of its contents and finally, that it !as not e/ecuted in accordance !ith la!" Ane of the !itnesses, An$el -evel 3r" !as also the notary efore !hom the !ill !as ac.no!led$ed" 8espite the o 2ection, the lo!er court admitted the !ill to pro ate on the $round that there is su stantial compliance !ith the le$al re1uirements of havin$ at least B !itnesses even if the notary pu lic !as one of them" Whether or not the will is valid in accordance with Art. !"# and !"$ of the %&& %o" -he !ill is not valid" -he notary pu lic cannot e considered as the third instrumental !itness since he cannot ac.no!led$e efore himself his havin$ si$ned the said !ill" An ac.no!led$in$ officer cannot serve as !itness at the same time" -o ac.no!led$e efore means to avo!, or to o!n as $enuine, to assent, admit, and : efore: means in front of or precedin$ in space or ahead of" -he notary cannot split his personality into t!o so that one !ill appear efore the other to ac.no!led$e his participation int he ma.in$ of the !ill" -o permit such situation !ould e a surd" )inally, the function of a notary amon$ others is to $uard a$ainst any ille$al or immoral arran$ements, a function defeated if he !ere to e one of the attestin$ or instrumental !itnesses" #e !ould e interested in sustainin$ the validity of the !ill as it directly involves himself and the validity of his o!n act" he !ould e in an inconsistent position, th!artin$ the very purpose of the ac.no!led$ment, !hich is to minimize fraud" SourceD httpDEEla!sandfound" lo$spot"comE<C?BEC?Ecruz7v7villasor7di$est"html

Javellana vs. 6edes)a' /.R. No. 6%7+7, -he ,)I of Iloilo admitted to pro ate a !ill and codicil e/ecuted y the deceased Apolinaria +edesma in 3uly ?H5B" -his testament !as deemed e/ecuted on May ?H5C and May ?H5<" -he contestant !as the sister and nearest survivin$ relative of the deceased" She appealed from this decision alle$in$ that the !ill !ere not e/ecuted in accordance !ith la!" -he testament !as e/ecuted at the house of the testatri/" Ane the other hand, the codicil !as e/ecuted after the enactment of the %e! ,ivil ,ode (%,,), and therefore had to e ac.no!led$ed efore a notary pu lic" %o!, the contestant, !ho happens to e one of the instrumental !itnesses asserted that after the codicil !as si$ned and attested at the San Pa lo hospital, that *imotea (the notary) si$ned and sealed it on the same occasion" *imotea, ho!ever, said that he did not do so, and that the act of si$nin$ and sealin$ !as done after!ards" Ane of the alle$ations !as that the certificate of ac.no!led$ement to the codicil !as si$ned some!here else or in the office of the notary" -he i/ and the !itnesses at the hospital, !as si$ned and sealed y the notary only !hen he rou$ht it in his office" Whether or not the signing and sealing of the will or codicil in the absence of the testator and witnesses affects the validity of the will %o" Unli.e in the Ald ,ivil ,ode of ?=HH, the %,, does not re1uire that the si$nin$ of the testator, the !itnesses and the notary e accomplished in one sin$le act" All that is re1uired is that every !ill must e ac.no!led$ed efore a notary pu lic y the testator and !itnesses" -he su se1uent si$nin$ and sealin$ is not part of the ac.no!led$ement itself nor of the testamentary act" -heir separate e/ecution out of the presence of the testator and the !itnesses cannot e a violation of the rule that testaments should e completed !ithout interruption" SourceD httpDEEla!sandfound" lo$spot"comE<C?BEC<E2avellana7v7ledesma7di$est"html

/ar(ia v. Vas>ue=' /.R. No. 6%"$-#- !ar(3 "-' +,$, *liceria del >osario e/ecuted < !ills, one in 3une ?H5F, !ritten in Spanish, a lan$ua$e she .ne! an spo.e" -he other !ill !as e/ecuted in 8ecem er ?HFC consistin$ of only one pa$e, and !ritten in -a$alo$" -he !itnesses to the ?HFC !ill declared that the !ill !as first read :silently: y the testatri/ efore si$nin$ it" -he pro ate court admitted the !ill" -he oppositors alle$ed that the as of 8ecem er ?HFC, the eyesi$ht of the deceased !as so poor and defective that she could not have read the provisions contrary to the testimony of the !itnesses" Whether or not the will is valid -he !ill is not valid" If the testator is lind, Art" =C= of the %e! ,ivil ,ode (%,,) should apply"If the testator is lind or incapa le of readin$, he must e apprised of the contents of the !ill for him to e a le to have the opportunityto o 2ect if the provisions therein are not in accordance !ith his !ishes" -he testimony of her opthalmolo$ist esta lished that not!ithstandin$ an operation to remove her cataract and ein$ fitted !ith the lenses, this did not improve her vision" #er vision remained mainly for vie!in$ distant o 2ects and not for readin$" -here !as no evidence that her vision improved at the time of the e/ecution of the <nd !ill" #ence, she !as incapa le of readin$ her o!n !ill" -he admission of the !ill to pro ate is therefor erroneous" SourceD httpDEEla!sandfound" lo$spot"comE<C?BEC<E$arcia7v7vas1uez7di$est"html

Alvarado v. /aviola' ""$ S RA 207 9 JEN SU

ESSION REVIE5ER

An 5 %ovem er ?H@@, @H7year old Gri$ido Alvarado e/ecuted a notarial !ill entitled 5#ulin$ #a ilin6 !herein he disinherited an ille$itimate son, petitioner ,esar Alvarado, and e/pressly revo.ed a previously e/ecuted holo$raphic !ill at the time a!aitin$ pro ate efore the >-, of +a$una" Accordin$ to Gayani Ma" >ino, private respondent, he !as present !hen the said notarial !ill !as e/ecuted, to$ether !ith three instrumental !itnesses and the notary pu lic, !here the testator did not read the !ill himself, sufferin$ as he did from $laucoma" >ino, a la!yer, drafted the ei$ht7pa$e document and read the same aloud efore the testator, the three instrumental !itnesses and the notary pu lic, the latter four follo!in$ the readin$ !ith their o!n respective copies previously furnished them" -hereafter, a codicil entitled 5Jasulatan n$ Pa$ a a$o n$ Ilan$ Pa$papasiya na %asasaad sa #ulin$ #a ilin na May Petsa %o iem re 5, ?H@@ ni Gri$ido Alvarado6 !as e/ecuted chan$in$ some dispositions in the notarial !ill to $enerate cash for the testator(s eye operation" Said codicil !as li.e!ise not read y Gri$ido Alvarado and !as read in the same manner as !ith the previously e/ecuted !ill" 'hen the notarial !ill !as su mitted to the court for pro ate, ,esar Alvarado filed his opposition as he said that the !ill !as not e/ecuted and attested as re1uired y la!4 that the testator !as insane or mentally incapacitated due to senility and old a$e4 that the !ill !as e/ecuted under duress, or influence of fear or threats4 that it !as procured y undue pressure and influence on the part of the eneficiary4 and that the si$nature of the testator !as procured y fraud or tric." Whether or not notarial will of 'rigido Alvarado should be admitted to probate despite allegations of defects in the execution and attestation thereof as testator was allegedly blind at the time of execution and the double(reading re)uirement under Art. !"! of the %&& was not complied with. I0S" -he spirit ehind the la! !as served thou$h the letter !as not" Althou$h there should e strict compliance !ith the su stantial re1uirements of la! in order to insure the authenticity of the !ill, the formal imperfections should e rushed aside !hen they do not affect its purpose and !hich, !hen ta.en into account, may only defeat the testator(s !ill" ,esar Alvardo !as correct in assertin$ that his father !as not totally lind (of countin$ fin$ers at B feet) !hen the !ill and codicil !ere e/ecuted, ut he can e so considered for purposes of Art" =C=" -hat Art" =C= !as not follo!ed strictly is eyond cavil" #o!ever, in the case at ar, there !as su stantial compliance !here the purpose of the la! has een satisfiedD that of ma.in$ the provisions .no!n to the testator !ho is lind or incapa le of readin$ the !ill himself (as !hen he is illiterate) and ena lin$ him to o 2ect if they do not accord !ith his !ishes" >ino read the testator(s !ill and codicil aloud in the presence of the testator, his three instrumental !itnesses, and the notary pu lic" Prior and su se1uent thereto, the testator affirmed, upon ein$ as.ed, that the contents read corresponded !ith his instructions" Anly then did the si$nin$ and ac.no!led$ment ta.e place" -here is no evidence that the contents of the !ill and the codicil !ere not sufficiently made .no!n and communicated to the testator" 'ith four persons, mostly .no!n to the testator, follo!in$ the readin$ !ord for !ord !ith their o!n copies, it can e safely concluded that the testator !as reasona ly assured that !hat !as read to him !ere the terms actually appearin$ on the type!ritten documents" -he rationale ehind the re1uirement of readin$ the !ill to the testator if he is lind or incapa le of readin$ the !ill to himself (as !hen he is illiterate), is to ma.e the provisions thereof .no!n to him, so that he may e a le to o 2ect if they are not in accordance !ith his !ishes" Althou$h there should e strict compliance !ith the su stantial re1uirements of la! in order to insure the authenticity of the !ill, the formal imperfections should e rushed aside !hen they do not affect its purpose and !hich, !hen ta.en into account, may only defeat the testator(s !ill"

.edoro ANEDA' et al.?etitioners vs. Hon. OUR. O& APPEA6S and 5illia) A8RERA' as S?e(ial Ad)inistrator o4 t3e Estate o4 !ateo a*allero' res?ondents. An 8ecem er 5, ?H@=, Mateo ,a allero, a !ido!er !ithout any children, already in the t!ili$ht years of his life e/ecuted a last !ill and testament efore three attestin$ !itnesses and he !as duly assisted y his la!yer and a notary pu lic" It !as declared therein that, amon$ other thin$s that the testator !as leavin$ y !ay of le$acies and devises his real and personal properties to specific persons, all of !hom do not appear to e related to Mateo" %ot lon$ after, he himself filed a petition efore the ,)I see.in$ the pro ate of his last !ill and testament ut the scheduled hearin$s !ere postponed, until the testator passed a!ay efore his petition could finally e heard y the pro ate court" Genoni ,a rera, one of the le$atees named in the !ill, sou$ht his appointment as special administrator of the testator(s estate ut due to his death, he !as succeeded y 'illiam ,a rera, !ho !as appointed y >-, !hich is already the pro ate court" P0-I-IA%0>SD -he petitioners assail to the allo!ance of the testator:s !ill on the $round that it !as not e/ecuted in accordance !ith all the re1uisites of la! since the testator !as already in a poor state of health such that he could not have possi ly e/ecuted the same" Petitioners li.e!ise contend that the !ill is null and void ecause its attestation clause is fatally defective since it fails to specifically state that the instrumental !itnesses to the !ill !itnessed the testator si$nin$ the !ill in their presence and that they also si$ned the !ill and all the pa$es thereof in the presence of the testator and of one another" >0SPA%80%-SD -he respondent, on the other hand, ar$ue that Mateo !as of sound and disposin$ mind and in $ood health !hen he e/ecuted his !ill" )urther, they also contend that the !itnesses attested and si$ned the !ill in the presence of the testator and of each other" Whether or not the attestation clause in the last will of *ateo &aballero is fatally defective such that whether or not it affects the validity of the will. Whether or not the attestation clause complies with the substantial compliance pursuant to Article !"+ of the &ivil &ode. An attestation clause refers to that part of an ordinary !ill !here y the attestin$ !itnesses certify that the instrument has een e/ecuted efore them and to the manner of the e/ecution of the same" It is a separate memorandum or record of the facts surroundin$ the conduct of e/ecution and once si$ned y the !itnesses4 it $ives affirmation to the fact that compliance !ith the essential formalities re1uired y la! has een o served" Under the Brd para$raph of Article =C5, such a clause, the complete lac. of !hich !ould result in the invalidity of the !ill, should stateD ?" -he num er of pa$es used upon !hich the !ill is !ritten4 <" -hat the testator si$ned, or e/pressly cause another to si$n, the !ill and every pa$e thereof in the presence of the attestin$ !itnesses4 and B" -hat the attestin$ !itnesses !itnessed the si$nin$ y the testator of the !ill and all its pa$es, and that the said !itnesses also si$ned the !ill and every pa$e thereof in the presence of the testator and of one another" It !ill e noted that Article =C5 re1uires that the !itness should oth attest and su scri e to the !ill in the presence of the testator and of one another" 5Attestation6 and 5su scription6 differ in meanin$" Attestation is the act of sense, !hile su scription is the act of the hand" -he attestation clause herein assailed is that !hile it recites that the testator indeed si$ned the !ill and all its pa$es in the presence of the three attestin$ !itnesses and states as !ell the num er of pa$es that !ere used, the same does not e/pressly state therein the circumstance that said !itnesses su scri ed their respective si$natures to the !ill in the presence of the testator and of each other" 'hat is then clearly lac.in$ is the statement that the !itnesses si$ned the !ill and every pa$e thereof in the presence of the testator and of one another"

-he a sence of the statement re1uired y la! is a fatal defect or imperfection !hich must necessarily result in the disallo!ance of the !ill that is here sou$ht to e admitted to pro ate" Petitioners are correct in pointin$ out that the defect in the attestation clause o viously cannot e characterized as merely involvin$ the form of the !ill or the lan$ua$e used therein !hich !ould !arrant the application of the su stantial compliance rule, as contemplated in Article =CH of the ,ivil ,odeD In the a sence of ad faith, for$ery, or fraud or undue and improper pressure and influence, defects and imperfection in the form of attestation or in the lan$ua$e used therein shall not render the !ill invalid if it is not proved that the !ill !as in fact e/ecuted and attested in su stantial compliance !ith all the re1uirements of Article =C5" -he defects and imperfection must only e !ith respect to the form of the attestation or the lan$ua$e employed therein" Such defects or imperfection !ould not render a !ill invalid should it e proved that the !ill !as really e/ecuted and attested in compliance !ith Article =C5" -hese considerations do not apply !here the attestation clause totally omits the fact that the attestin$ !itnesses si$ned each and every pa$e of the !ill in the presence of the testator and of each other" In such a situation, the defect is not only in the form or lan$ua$e of the attestation clause ut the total a sence of a specific element re1uired y Article =C5 to e specifically stated in the attestation clause of a !ill" -hat is precisely the defect complained of in the present case since there is no plausi le !ay y !hich it can e read into the 1uestioned attestation clause statement, or an implication thereof, that the attestin$ !itness did actually ear !itness to the si$nin$ y the testator of the !ill and all of its pa$es and that said instrumental !itnesses also si$ned the !ill and every pa$e thereof in the presence of the testator and of one another" SourceD U%I&0>SI-I A) -#0 ,A>8I++0>AS ,A++0*0 A) +A', 'I++S A%8 SU,,0SSIA%, ,AS0 8I*0S-K

Danilo A6UAD' et al.' ?etitioners vs. Zenaido A6UAD' res?ondent /.R. No. +7$,02' O(to*er +7' "##Petitioner(s mother, Maria Aluad and respondent Lenaido Aluad !ere raised y the childless spouses Matilde and ,rispin Aluad" ,rispin !as the o!ner of si/ lots of Pilar ,adastre, ,apiz" After his death, Matilde ad2udicated the lots to herself and thereafter, she e/ecuted a 8eed of 8onation of >eal Property Inter &ivos in favor of Maria coverin$ all the si/ lots" -he 8eed provided that such !ill ecome effective upon the death of the 8onor, ut in the event that the 8onee should die efore the 8onor, the present donation shall e deemed rescinded" Provided, ho!ever, that anytime durin$ the lifetime of the 8onor or anyone of them !ho should survive, they could use, encum er or even dispose of any or even all of the parcels of the land" Matilde sold one of the lots to Lenaido and su se1uently, Matilde e/ecuted a last !ill and testament devisin$ four (4) of the lots to Maria and the remainin$ lot to Lenaido" Maria died a fe! months after Matilde(s death" -hereafter, Maria(s heirs (herein petitioners) filed efore the >-, a complaint for declaration and recovery of o!nership and possession of the t!o lots conveyed and donated to Lenaido, alle$in$ that no ri$hts have een transmitted to the latter ecause such lots have een previously alienated to them to Maria via the 8eed of 8onation" -he lo!er court decided in favor of the petitioners ho!ever, ,A reversed said decision upon appeal of Lenaido !hich held that the 8eed of 8onation !as actually a donation mortis causa, not inter vivos and as such it had to, ut did not, comply !ith the formalities of a !ill" 8ue to the denial of the petitioner(s Motion for >econsideration, the present Petition for >evie! has een filed" Whether or not the ,eed of ,onation is donation inter vivos and whether or not such deed is valid. -f so, whether or not *atilde Aluad has the right to convey the lots in )uestion to .enaido Aluad. -he ,ourt finds the donation to Maria Aluad (petitioner(s mother) one of mortis causa, it havin$ the follo!in$ characteristicsD ?" It conveys no title or o!nership to the transferee efore the death of the transferor, or !hat amounts to the same thin$, that the transferor should retain the o!nership (full or na.ed) and control of the property !hile alive4 <" -hat efore the death of the transferor, the transfer should e revoca le, y the transferor at !ill, ad nutum, ut revoca ility may e provided for indirectly y means of a reserved po!er in the donor to dispose of the properties conveyed4 and B" -hat the transfer should e void of the transferor should survive the transferee" -he phrase in the earlier71outed 8eed of 8onation 5to ecome effective upon the death of the 8A%A>6 admits of no other interpretation than to mean that Matilde did not intend to transfer the o!nership of the si/ lots to petitioner(s mother durin$ the former(s lifetime" )urther the statement, 5anytime durin$ the lifetime of the 8A%A> or anyone of them !ho should survive, they could use, encum er or even dispose of any or even all the parcels of land herein donated,6 means that Matilde retained o!nership of the lots and reserved in her the ri$ht to dispose them" )or the ri$ht to dispose of a thin$ !ithout other limitations than those esta lished y la! is an attri ute of o!nership" -he phrase, 5anyone of them !ho should survive6 is out of sync" )or the 8eed of 8onation clearly stated that it !ould ta.e effect upon the death of the donor, hence, said phrase could only have referred to the donor" -he donation ein$ then mortis causa, the formalities of a !ill should have een o served ut they !ere not, as it !as !itnessed y only t!o, not three or more !itnesses follo!in$ Article =C5 of the ,ivil ,ode" It is void and transmitted no ri$ht to petitioner(s mother" Gut even assumin$ ar$uendo that the formalities !ere o served, since it !as not pro ated, no ri$ht to the t!o lots !as transmitted to Maria" Matilde thus validly disposed the lot to Lenaido y her last !ill and testament, su 2ect to the 1ualification that her !ill must e pro ated" 'ith respect to the conveyed lot, the same had een validly sold y Matilde to Lenaido"